      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                         FILED
      regarded as precedent or cited before any                                 Jun 23 2017, 8:28 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
      Steven Knecht                                            Curtis T. Hill, Jr.
      Vonderheide & Knecht, P.C.                               Attorney General of Indiana
      Lafayette, Indiana                                       Larry D. Allen
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Kamau I. Campbell,                                       June 23, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               91A05-1606-CR-1521
              v.                                               Appeal from the White Superior
                                                               Court
      State of Indiana,                                        The Honorable Robert B. Mrzlack,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               91D01-1505-F3-49



      Mathias, Judge.


[1]   Kamau Campbell (“Campbell”) was convicted in White Superior Court of

      Level 3 felony robbery, and he was ordered to serve eleven years executed in


      Court of Appeals of Indiana | Memorandum Decision 91A05-1606-CR-1521 | June 23, 2017              Page 1 of 8
      the Department of Correction. Campbell appeals his sentence arguing 1) that

      the trial court abused its discretion when it considered the circumstances of the

      crime as an aggravating circumstance, and 2) that his eleven-year sentence is

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

      offender.


[2]   We affirm.


                                 Facts and Procedural History

[3]   On May 13, 2015, Campbell robbed the Wells Fargo Bank in Monticello,

      Indiana. During the robbery, he carried a metal bar that he had altered so that it

      appeared to be a gun. When Campbell entered the bank, he shouted “this is a

      real robbery” and demanded cash from the two bank tellers. Tr. Vol. II pp. 80-

      81. He threw a bag and other items from the bank counters at the tellers and

      told them to put money in the bag and not to set off the alarm. The tellers

      complied and followed Campbell’s instructions as the bank had trained them to

      do. The bank manager and the teller running the drive thru, who were not in

      the front of the bank, were able to set off their alarms to notify the police that a

      robbery was in progress.

[4]   After the tellers put money in his bag, Campbell fled from the bank carrying the

      bag and the metal bar. Campbell ran toward a wooded area adjacent to nearby

      railroad tracks. Campbell was apprehended shortly thereafter by officers from

      the Monticello Police Department. When he was searched incident to arrest,



      Court of Appeals of Indiana | Memorandum Decision 91A05-1606-CR-1521 | June 23, 2017   Page 2 of 8
      the officers found a knife in his pocket. The officers also recovered the money

      stolen from the bank and a black metal bar.

[5]   Campbell was charged with Level 3 felony robbery. In May 2016, a jury trial

      was held, and Campbell was convicted as charged.

[6]   Campbell’s sentencing hearing was held on June 21, 2016. The four employees

      present during the bank robbery gave statements expressing the emotional

      trauma and fear they suffered both during and after the robbery. The trial court

      considered the employees’ continued trauma as an aggravating circumstance.

      The trial court found that Campbell’s lack of criminal history, remorse, and

      history of depression were mitigating circumstances. The trial court also

      considered that Campbell’s crime seemed to be out of character for him.

      However, the trial court concluded that the aggravating circumstance

      outweighed the mitigating circumstances and ordered Campbell to serve an

      eleven-year sentence executed in the Department of Correction. Campbell now

      appeals.


                                     Discussion and Decision

[7]   Campbell argues that the trial court abused its discretion when it considered the

      continued trauma suffered by the bank tellers as an aggravating circumstance.

      He also contends that his eleven-year sentence is inappropriate in light of the

      nature of the offense and the character of the offender.




      Court of Appeals of Indiana | Memorandum Decision 91A05-1606-CR-1521 | June 23, 2017   Page 3 of 8
      A. Abuse of Discretion

[8]   In its sentencing order, the trial court found “that four bank employees were

      emotionally harmed by the Defendant’s actions” to be an aggravating

      circumstance. At the sentencing hearing, the court stated:


              And unfortunately, you traumatized four bank employees and
              probably other customers who were there and in the area at the
              time. And at least with the bank employees, they’re going to have
              to live with that experience for the rest of their lives. And that’s
              something that’s not easy to get over. If you lose your feeling and
              safety and trust in human beings, you’re constantly looking over
              your shoulder, you’re constantly looking around, you’re
              constantly in fear of the unknown. . . . Though its something that
              hopefully will pass over time, it probably will never go away.


              The fact that four individual employees were at the Wells Fargo
              Bank when this took place and were victimized by your actions,
              the Court finds that to be an aggravating factor, even though you
              were charged with just one robbery.


      Tr. Vol. III, pp. 48-49.


[9]   Campbell argues that the trial court abused its discretion when it considered the

      harm suffered by the bank employees as an aggravating circumstance. See

      Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

      218 (stating that sentencing decisions are within the sound discretion of the trial

      court). An abuse of discretion occurs when the trial court’s decision is contrary

      to “the logic and effect of the facts and circumstances before the court or the

      reasonable, probable, and actual deductions to be drawn therefrom.” Williams v.


      Court of Appeals of Indiana | Memorandum Decision 91A05-1606-CR-1521 | June 23, 2017   Page 4 of 8
       State, 997 N.E.2d 1154, 1163 (Ind. Ct. App. 2013). A trial court abuses its

       discretion 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).


[10]   Under Indiana Code section 35-38-1-7.1(a)(1), the trial court may consider as

       an aggravator whether “[t]he harm, injury, loss, or damage suffered by the

       victim . . . was . . . significant [ ] and . . . greater than the elements necessary to

       prove the commission of the offense.” See also McCoy v. State, 856 N.E.2d 1259,

       1263 (Ind. Ct. App. 2006) (stating that in order to find the nature and

       circumstances of the crime to be an aggravating circumstance, the trial court

       must point to facts not necessary to establish the elements of the offense). In this

       case, Campbell was convicted of Level 3 felony robbery and the charging

       information alleged that Campbell “did knowingly or intentionally take

       property from . . . Wells Fargo Bank . . . by putting the Wells Fargo Bank

       employees in fear while armed with a deadly weapon, to wit: a metal pipe.”

       Appellant’s App. p. 23.


[11]   Because the State was required to prove that Campbell caused the bank

       employees to suffer fear during the robbery, that circumstance cannot be used

       Court of Appeals of Indiana | Memorandum Decision 91A05-1606-CR-1521 | June 23, 2017   Page 5 of 8
       as an aggravating factor. However, the trial court specifically considered the

       bank employees’ trauma that they continue to suffer even now, as a result of the

       robbery. This finding was supported by the testimony and evidence presented at

       the sentencing hearing, and the trial court acted within its discretion when it

       considered this aggravating circumstance.


       B. Inappropriate Sentence

[12]   Campbell also argues that his eleven-year executed sentence is inappropriate in

       light of the nature of the offense and the character of the offender. Indiana

       Appellate Rule 7(B) provides that “[t]he 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.” In conducting our review, “[w]e 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). “[S]entencing is principally a discretionary function in which the trial

       court’s judgment 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).

       Ultimately, 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

       Court of Appeals of Indiana | Memorandum Decision 91A05-1606-CR-1521 | June 23, 2017   Page 6 of 8
       1219, 1225 (Ind. 2008). Campbell bears the burden to establish that his sentence

       is inappropriate. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007).


[13]   When considering 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). The

       advisory sentence for a level 3 felony is nine years, with a sentencing range of

       three to sixteen years. Ind. Code § 35-50-2-5(b). Campbell’s eleven-year

       sentence is two more years than the advisory.


[14]   There is nothing particularly egregious about the nature of Campbell’s offense.

       He quickly robbed the bank armed with a metal bar altered so that it would

       appear to be a gun. He yelled at the bank tellers to put money in his duffle bag,

       and once that was accomplished he ran out of the bank. When he was arrested,

       he had a knife in his pocket, but the knife was not used in the commission of

       the robbery. No one was physically harmed during the robbery. However,

       Campbell’s crime inflicted emotional injury on the bank employees who

       continue to suffer from the stress and trauma of the robbery.


[15]   Up to the date that thirty-eight-year-old Campbell chose to rob the bank, he led

       a law-abiding life and was a productive member of society. The trial court

       observed that Campbell has a bachelor’s degree, he was employed, supported

       his family, and helped his siblings by serving as a role model for them. The

       court stated “so, the Court is convinced that this type of activity is out of

       character for you[.]” Tr. Vol. III, p. 48. Campbell also suffers from depression


       Court of Appeals of Indiana | Memorandum Decision 91A05-1606-CR-1521 | June 23, 2017   Page 7 of 8
       and sought treatment for his depression both before and after he committed the

       robbery.

[16]   No facts in the record would support a sentence higher than the nine-year

       advisory if we were just considering the character of the offender. However,

       Campbell’s offense has resulted in on-going emotional trauma for the four bank

       employees present during the robbery. Under these facts and circumstances, we

       cannot conclude that the trial court’s decision to impose an eleven-year

       sentence for this offense is an “outlier” that should be revised under our

       constitutional authority to review and revise sentences. See Cardwell, 895 N.E.2d

       at 1225. For this reason, we conclude that Campbell has not met his burden of

       persuading us that his eleven-year sentence, which is five years less than the

       maximum sentence allowed,1 is inappropriate, in light of the nature of the

       offense and the character of the offender. See Anglemyer, 868 N.E.2d at 494

       (stating the burden is on the defendant to persuade the appellate court that his

       or her sentence is inappropriate).

[17]   Affirmed.


       Kirsch, J., and Altice, J., concur.




       1
         The impact of a three-year sentence is markedly different from a sixteen-year sentence. It is hard to imagine
       a scenario where a three-year sentence would be imposed for an armed bank robbery. For comparison’s sake,
       other Level 3 felony offenses include possessing more than twenty-eight grams of methamphetamine, sex
       trafficking of a minor, arson if it results in bodily injury to any person, child molesting, and aggravated
       battery. See I.C. §§ 35-48-4-6.1, 35-42-3.5-1; 35-43-1-1, 35-42-4-3, 35-42-2-1.5.

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