      MEMORANDUM DECISION
                                                                             FILED
      Pursuant to Ind. Appellate Rule 65(D), this                        Sep 22 2016, 6:35 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the                     CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
      purpose of establishing the defense of res judicata,                    and Tax Court
      collateral estoppel, or the law of the case.



      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Ruth A. Johnson                                          Gregory F. Zoeller
      Michael R. Fisher                                        Attorney General of Indiana
      Marion County Public Defender Agency
                                                               Tyler G. Banks
      Indianapolis, Indiana
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                    IN THE
             COURT OF APPEALS OF INDIANA

      Russell Rouzier,                                         September 22, 2016

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A04-1603-CR-495
                 v.                                            Appeal from the Marion Superior
                                                               Court.
                                                               The Honorable Anne M. Flannelly,
      State of Indiana,                                        Magistrate.
      Appellee-Plaintiff.                                      Cause No. 49G04-1510-F3-035851




      Friedlander, Senior Judge

[1]   Russell Rouzier was convicted of and sentenced for one count of criminal
                                                                     1
      confinement while armed with a deadly weapon, as a Level 3 felony, and one




      1
          Ind. Code § 35-42-3-3 (b)(2)(A) (2013).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1603-CR-495 | September 22, 2016   Page 1 of 9
                                            2
      count of domestic battery, as a Class A misdemeanor. On appeal, Rouzier

      challenges the sufficiency of the evidence supporting his conviction of criminal

      confinement and the appropriateness of his sentence. We affirm.


[2]   Rouzier and Rachel Hastings were in a romantic relationship and living

      together in a one-bedroom apartment on the south side of Indianapolis in

      October 2015. They had been involved in the relationship for approximately

      one year and things were going poorly for the two. According to Hastings, they

      argued about almost everything, including Rouzier’s habit of staying out all

      night, and that Hastings was the only one of the two who was employed. By

      October 7, 2015, Hastings had decided to end the relationship and find an

      apartment of her own when her lease expired in early November.


[3]   On Wednesday, October 7, 2015, Hastings was not scheduled to work and

      spent the day with Rouzier. The two drank alcohol and used cocaine

      throughout the day. Later in the evening, they were at home, eating pizza and

      watching television. At some point that night, Rouzier fell asleep in a loveseat

      in the living room, and Hastings feel asleep on a nearby couch.


[4]   When they awoke the next morning, Hastings and Rouzier began to argue.

      Hastings moved into the kitchen while Rouzier remained on the loveseat.

      Hastings became upset and threw a can in Rouzier’s direction, but it did not hit




      2
          Ind. Code § 35-42-2-1.3 (2014).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1603-CR-495 | September 22, 2016   Page 2 of 9
      him. Rouzier got up from the loveseat, entered the kitchen and stood face-to-

      face with Hastings.


[5]   Hastings asked Rouzier to leave the apartment and tried to leave the kitchen

      area through the only exit. Each time she did so, however, Rouzier would

      block her with his body, or grab her arm and pull her back into the kitchen area.

      He did this about two or three times. Hastings was not able to get around

      Rouzier to leave the kitchen.


[6]   Next, Rouzier wrapped his hands around Hastings’s neck. Hastings could not

      recall whether Rouzier used one or both hands initially. Either during this part

      of the confrontation or shortly after, Rouzier reached for a serrated bread knife

      and held it to Hastings’s neck without touching her for up to thirty seconds.

      After he stopped holding the knife to Hastings’s neck, he walked to the living

      room and put the knife to her eighteen-year-old Italian Greyhound’s neck.

      Hastings remembered Rouzier saying to her, “I don't have to hurt you. . . I can

      kill your f-ing dog.” Tr. p. 43.


[7]   Hastings dialed 911 from her cell phone and was only able to provide her name

      and address before Rouzier grabbed the phone from her and disconnected the

      call. Rouzier placed Hastings’s phone on the loveseat near where he was

      standing. Hastings grabbed the phone and was able to speak with the 911

      dispatcher while Rouzier remained in the room. He no longer held the knife at

      that time.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1603-CR-495 | September 22, 2016   Page 3 of 9
[8]    Indianapolis Metropolitan Police Department Officer Charles Smith was the

       first officer to respond to the call and arrive at the apartment, which was on the

       second floor of its building. When Officer Smith entered the building and

       walked up the stairs, he found Rouzier standing outside the apartment. Officer

       Smith entered the apartment while Rouzier stood behind him in the doorway.

       Rouzier and Hastings continued to yell at each other, with Hastings requesting

       that Rouzier leave the apartment. By that time, Officer Gerald Neumann had

       arrived on the scene. Rouzier decided to leave the apartment after both officers

       advised him that it would be a good idea to do so. The officers and Rouzier

       walked down the stairs, and Rouzier walked away from the apartment building.


[9]    After Officer Smith left the scene, Officer Neumann spoke with Hastings to get

       a more detailed account of what had occurred. Approximately ten minutes

       after Rouzier had walked away from the apartment, Hastings and Officer

       Neumann could hear Rouzier yelling through the open sliding-glass door that

       led to the apartment’s balcony. Rouzier was asking Hastings to give him a

       book that contained some phone numbers. Based on his conversation with

       Hastings, Officer Neumann decided to place Rouzier under arrest.


[10]   On October 9, 2015, the State charged Rouzier with seven criminal offenses

       based on the altercation, and Rouzier was served with a no-contact order

       protecting Hastings on October 13, 2015. While in custody at the jail pending

       trial, a log of phone calls kept by the jail reflected that Rouzier attempted to call

       Hastings thirty-six times after he was served with the no-contact order. When

       Rouzier was able to speak with Hastings, he begged her to violate her subpoena

       Court of Appeals of Indiana | Memorandum Decision 49A04-1603-CR-495 | September 22, 2016   Page 4 of 9
       and not testify at his trial. Other people called or texted her on Rouzier’s

       behalf, asking her not to testify at Rouzier’s trial. Hastings did testify against

       Rouzier at trial.


[11]   A jury found Rouzier guilty of criminal confinement while armed with a deadly

       weapon, domestic battery, and battery resulting in bodily injury. The trial court

       sentenced Rouzier to twelve years executed for the confinement conviction, and

       one year executed for the domestic battery conviction to be served concurrently.

       The trial court found that the remaining battery conviction merged with the

       domestic battery conviction, and did not enter judgment of conviction or

       sentence on the verdict. This appeal followed.


[12]   Rouzier challenges the sufficiency of the evidence supporting his conviction of

       criminal confinement while armed with a deadly weapon. More specifically,

       Rouzier argues that there is no evidence to establish that he possessed the knife

       while confining Hastings.


[13]   When we review a challenge of the sufficiency of the evidence we neither

       reweigh the evidence nor judge the credibility of the witnesses. Mallard v. State,

       816 N.E.2d 53 (Ind. Ct. App. 2004), trans. denied. We consider only the

       evidence most favorable to the judgment and the reasonable inferences that can

       be drawn therefrom. Id. We will not disturb the judgment if there is substantial

       evidence of probative value to support the judgment. Id.


[14]   Here the evidence reflects that Rouzier refused to allow Hastings to leave the

       kitchen area after he confronted her face-to-face, blocking her exit with his body

       Court of Appeals of Indiana | Memorandum Decision 49A04-1603-CR-495 | September 22, 2016   Page 5 of 9
       and by pulling her by the arm back into the kitchen. He then placed both hands

       around her neck. During this time or just shortly after placing both hands

       around her neck, he picked up a serrated bread knife and held it to Hastings’s

       neck for approximately thirty seconds. Hastings testified that Rouzier then

       walked to the living room area with the knife and put it to her dog’s neck.


[15]   We have held that the statute defining the offense of criminal confinement

       while armed with a deadly weapon does not require the State to prove that the

       deadly weapon was used during the commission of the offense, just that the

       defendant was armed with the deadly weapon during the commission of the

       offense. Id. This distinction was reinforced in Nicoson v. State, 938 N.E.2d 660

       (Ind. 2010), wherein our Supreme Court concluded that a five-year sentence

       enhancement based upon the use of a deadly weapon, did not violate double

       jeopardy principles with respect to that defendant’s conviction of criminal

       confinement while armed with a deadly weapon.


[16]   Looking at the evidence presented at trial, the State proved that Rouzier was

       armed with the deadly weapon while confining Hastings in the kitchen. The

       fact that Rouzier first confined her by using his body to block her path, and by

       pulling her by the arm, and then by placing his hands or hand around her

       throat, does not diminish the sufficiency of the State’s evidence supporting the

       conviction. Hastings was only able to leave the kitchen area after Rouzier

       stopped holding the knife to her throat and left the kitchen for the living room

       area. The evidence is sufficient to support Rouzier’s conviction.



       Court of Appeals of Indiana | Memorandum Decision 49A04-1603-CR-495 | September 22, 2016   Page 6 of 9
[17]   Next, Rouzier claims that his sentence is inappropriate in light of the nature of

       the offense and character of the offender. A person, such as Rouzier, who

       commits a Level 3 felony shall be imprisoned for a fixed term of between three

       years and sixteen years with the advisory sentence being nine years. Ind. Code

       § 35-50-2-5 (2014). Rouzier was also convicted and sentenced for a Class A

       misdemeanor. A person who commits a Class A misdemeanor shall be

       imprisoned for a fixed term of not more than one year. Ind. Code § 35-50-3-2

       (1977). Rouzier received a twelve-year sentence for the Level 3 felony and a

       one-year sentence, to be served concurrently, for the Class A misdemeanor.


[18]   Under Indiana Appellate Rule 7(B), this “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.” When conducting our review of the

       sentence, we assess “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). A defendant

       bears the burden of persuading us that his sentence in inappropriate. Childress v.

       State, 848 N.E.2d 1073 (Ind. 2006).


[19]   Regarding the nature of the offense, we observe that Rouzier left the living

       room area to confront Hastings in the kitchen. He prevented her from leaving

       the kitchen by first blocking her with his body, pulling her by the arm, placing

       his hands around her throat, and then putting a serrated knife to her neck. He

       then took the knife to the living room where he threatened to kill Hastings’s

       Court of Appeals of Indiana | Memorandum Decision 49A04-1603-CR-495 | September 22, 2016   Page 7 of 9
       eighteen-year-old dog while holding the knife to its neck. After ignoring her

       request that he leave the premises, he also attempted to prevent her from

       summoning help from the police by disconnecting her first call to 911. Even

       after police officers had separated Rouzier and Hastings, he returned to the area

       of the apartment and shouted at Hastings while an officer was present to gather

       more information. At every opportunity to de-escalate the situation, Rouzier

       persisted.


[20]   As for the character of the offender, we look first to his criminal history.

       Rouzier’s criminal history began at the age of eighteen in Florida where he was

       convicted of carrying a concealed weapon as a felony in September 1987. Part

       of his sentence for that conviction included placement on probation, which was

       later revoked. In 1992, Rouzier was twice convicted of carrying a concealed

       weapon, each as a felony, and one felony conviction for possession of

       marijuana with intent to deliver. That same year he was convicted for

       misdemeanor possession of marijuana, misdemeanor resisting law enforcement,

       and misdemeanor improper exhibition of a firearm. As part of his sentence for

       one of these convictions, Rouzier was placed on probation, which was later

       revoked.


[21]   In 1995, Rouzier was convicted of four felonies and three misdemeanors. His

       felony convictions were for possession of cocaine, dealing in cocaine,

       possession of cocaine with intent to deliver, and smuggling contraband. His

       misdemeanor convictions involved two convictions for possession of cannabis

       and one for resisting law enforcement.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1603-CR-495 | September 22, 2016   Page 8 of 9
[22]   Rouzier then moved from Florida to North Carolina. In 1998, he was

       convicted of two felony counts of trafficking in a schedule II controlled

       substance and one felony count of possession with intent to sell a schedule II

       controlled substance. Rouzier was in custody for those charges until February

       21, 2010, during which time he received twelve separate misconduct reports.


[23]   Additionally, as a result of the nature of the charges filed against Rouzier in this

       case, a no-contact order was issued for the protection of Hastings. According to

       a log of phone calls kept by the jail, Rouzier attempted to call Hastings thirty-

       six times after he was served with the order. Other persons also called or texted

       Hastings on Rouzier’s behalf. These actions further demonstrate Rouzier’s

       disregard for the law.


[24]   In light of the nature of the offenses and the character of the offender, we

       conclude that Rouzier has not met his burden of persuading us that his sentence

       is inappropriate.


[25]   Judgment affirmed.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1603-CR-495 | September 22, 2016   Page 9 of 9
