Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                      Mar 22 2013, 8:47 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

MICHAEL C. BORSCHEL                               GREGORY F. ZOELLER
Fishers, Indiana                                  Attorney General of Indiana

                                                  CHANDRA K. HEIN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

DAIMON CULPEPPER,                                 )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )      No. 49A02-1209-CR-724
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                     APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Lisa F. Borges, Judge
                            Cause No. 49G04-1009-FA-73516



                                        March 22, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                                STATEMENT OF THE CASE

       Daimon1 Culpepper appeals his sentence following his conviction for robbery, as a

Class A felony, pursuant to a guilty plea. Culpepper presents a single issue for our

review, namely, whether his sentence is inappropriate in light of the nature of the offense

and his character.

       We affirm.

                         FACTS AND PROCEDURAL HISTORY

       On September 17, 2010, Tiffany Johnson visited Nicholas Toliver at Toliver’s

residence and discovered that he had “a large quantity of cocaine.” Transcript at 18.

After Johnson left Toliver’s residence, she told Aaron Smith and Culpepper about the

cocaine and asked them if they would help her rob Toliver. Smith and Culpepper agreed,

Smith asked Jamonte Walker to help them with the robbery, and Walker asked William

Brookins to drive the group to Toliver’s home.

       Once they arrived, Johnson knocked on Toliver’s front door while the others

remained out of sight. Toliver let Johnson inside. A short time later, Smith and Walker

knocked on Toliver’s door. When Toliver opened the door, he saw either Smith or

Walker holding a pistol. The gunman then demanded money and drugs from Toliver. A

struggle ensued, and the gunman struck Toliver several times in the head. And when

Toliver attempted to flee, the gunman shot him in the back, killing him. Culpepper

remained in the car during the entire incident.



       1
          Culpepper’s first name is spelled “Damion” in the briefs on appeal. But he signed and printed
his name as “Daimon” on the Pre-Sentence Investigation Report, and his name appears as “Daimon” in
various documents filed with the trial court.
                                                  2
        The State charged Culpepper with conspiracy to commit robbery, as a Class A

felony. In April 2011, Culpepper entered into a plea agreement whereby he pleaded

guilty to conspiracy to commit robbery, as a Class B felony, in exchange for giving

truthful testimony during his co-defendants’ trials. But the State filed a notice of intent to

withdraw guilty plea after Culpepper gave exculpatory testimony at a co-defendant’s

trial. Thereafter, in July 2012, Culpepper agreed to plead guilty to conspiracy to commit

robbery, as a Class A felony, without the benefit of a plea agreement. The trial court

accepted the plea, entered judgment of conviction accordingly, and sentenced Culpepper

to forty years, with ten years suspended. This appeal ensued.

                                 DISCUSSION AND DECISION

        Culpepper contends that his sentence is inappropriate in light of the nature of the

offense and his character.2 Although a trial court may have acted within its lawful

discretion in determining a sentence, Article VII, Sections 4 and 6 of the Indiana

Constitution “authorize[ ] independent appellate review and revision of a sentence

imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007)

(alteration original). This appellate authority is implemented through Indiana Appellate

Rule 7(B). Id. Revision of a sentence under Appellate Rule 7(B) requires the appellant

to demonstrate that his sentence is inappropriate in light of the nature of his offenses and

his character. See App. R. 7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App.

2007). We assess the trial court’s recognition or non-recognition of aggravators and

mitigators as an initial guide to determining whether the sentence imposed was

        2
          To the extent Culpepper attempts to argue that the trial court also abused its discretion when it
sentenced him, he makes no cogent argument in support of that contention. As such, we review his
sentence only under Indiana Appellate Rule 7(B).
                                                    3
inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). However, “a

defendant must persuade the appellate court that his or her sentence has met th[e]

inappropriateness standard of review.” Roush, 875 N.E.2d at 812 (alteration original).

       The Indiana Supreme Court has stated that “sentencing 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). Indiana’s flexible

sentencing scheme allows trial courts to tailor an appropriate sentence to the

circumstances presented. See id. at 1224. The principal role of appellate review is to

attempt to “leaven the outliers.”      Id. at 1225.    Whether we regard a sentence as

inappropriate 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 facts that come to

light in a given case.” Id. at 1224.

       Culpepper first contends that his sentence is inappropriate in light of the nature of

the offense because “his conduct merely mirrors the statutory elements” of the crime.

Brief of Appellant at 7. He maintains that his “de minimis” participation in the crime

warrants only the advisory sentence of thirty years. Id. But, considering the nature and

circumstances of the crime, this was a home invasion armed robbery for cocaine which

resulted in death. Thus, the nature of the offense cannot be minimized.

       Culpepper points to several proffered mitigators in support of his contention that

his sentence is inappropriate in light of his character. In particular, Culpepper asserts that

he has good character as reflected by:        his youth; his expression of remorse; his

acceptance of responsibility for his actions; his lack of a serious or relevant criminal


                                              4
history; and his substance abuse. But Culpepper’s criminal history dates back to 2004,

when he was only fourteen years old, and includes four juvenile adjudications, including

one for carrying a handgun without a license, and one conviction for attempted robbery,

as a Class C felony, at age seventeen after he was waived into adult court. Moreover,

Culpepper has a history of noncompliance with probation and alternative commitment.

He has failed formal probation, home-based counseling, electronic monitoring (twice), a

community service program, and a substance abuse program. In addition, Culpepper

violated community corrections following his Class C felony conviction. Culpepper’s

extensive history of substance abuse also reflects poorly on his character. He admits to

having smoked “ten to fifteen [marijuana] blunts daily” from the age of fourteen until

September 2010. Pre-Sentence Investigation Report at 10. And he “began experimenting

with prescription medications at the age of sixteen,” including Xanax, Klonopin, and

Percocet. Id. at 11. Culpepper admitted at sentencing that he had not complied with

court-ordered substance abuse treatment in the past. Finally, Culpepper violated the

terms of his plea agreement when he testified falsely at a co-defendant’s trial, which does

not mitigate in favor of a revised sentence. We cannot say that Culpepper’s forty-year

sentence is inappropriate in light of his character.

       Affirmed.

FRIEDLANDER, J., and BRADFORD, J., concur.




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