MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                            Dec 23 2015, 9:01 am

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
Randy M. Fisher                                         Gregory F. Zoeller
Leonard, Hammond, Thoma & Terrill                       Attorney General
Fort Wayne, Indiana

                                                        Paula J. Beller
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Stephen D. Booker,                                      December 23, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A04-1505-CR-307
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Frances C. Gull
Appellee-Plaintiff                                      Trial Court Cause No.
                                                        02D05-1406-FB-110



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 02A04-1505-CR-307 | December 23, 2015   Page 1 of 8
                                          Case Summary
[1]   Stephen D. Booker appeals his eighteen-year sentence for Class B felony rape.

      He contends the trial court abused its discretion by not crediting his proffered

      mitigating circumstances and that his sentence is inappropriate. Finding no

      abuse of discretion and that Booker has failed to persuade us that his sentence is

      inappropriate, we affirm.



                            Facts and Procedural History
[2]   P.J. went out with her sister and two friends to celebrate her twentieth birthday

      on March 23, 2013. Over the course of the evening, P.J. consumed enough

      alcohol to become incapacitated. At around 3:00 a.m., P.J.’s sister helped her

      get into bed and the sister stayed for about an hour before leaving P.J., asleep

      and alone. Before leaving, P.J.’s sister took P.J.’s key so that she could lock the

      door when she left the apartment. Unfortunately, the lock on P.J.’s apartment

      only worked if the door was being pulled while the key was being turned, and

      P.J.’s sister did not know that. Over the remainder of the early morning hours,

      neighbors came to check on P.J. multiple times. All of the neighbors agreed

      that they were unable to wake P.J.—that she was completely unresponsive.


[3]   Also on March 23, 2013, forty-two-year-old Stephen D. Booker was visiting

      friends who live in the same building as P.J. Booker went into P.J.’s apartment

      with Nina Williams when Williams was checking on P.J. “to see if she was




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      breathing.” Tr. p. 110. Booker left Williams’s apartment later in the morning,

      when Williams was going to bed.

[4]   After leaving Williams’s apartment, Booker entered P.J.’s apartment, uninvited.

      Booker began having sexual intercourse with P.J. while she was still

      incapacitated. P.J. finally awoke to find Booker having sex with her. She

      immediately ordered him out of her home.

[5]   The State charged Booker with two counts of Class B felony rape: Count I,

      knowingly or intentionally having sexual intercourse with another person when

      the other person is unaware that sexual intercourse is occurring; and Count II,

      knowingly or intentionally having sexual intercourse with another person when

      the other person is so mentally disabled or deficient that consent to sexual

      intercourse cannot be given. The jury convicted Booker on both counts. The

      trial judge ordered the conviction on Count II vacated and sentenced Booker to

      eighteen years at the Indiana Department of Correction and lifetime parole on

      Count I. Booker now appeals his sentence.



                                Discussion and Decision
[6]   Booker appeals his sentence on the grounds that the trial court abused its

      discretion and that the sentence is inappropriate based on the nature of the

      offense and his character.




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                                     I. Abuse of Discretion
[7]   Sentencing 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), decision 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 before the court, or the reasonable,

      probable, and actual deductions to be drawn therefrom. Id. A trial court may

      abuse its discretion in a number of ways, including entering a sentencing

      statement that omits mitigating factors that are clearly supported by the record.

      Id. at 490-91. However, the “trial court is not obligated to accept the

      defendant’s contentions as to what constitutes a mitigating factor[,]” nor is it

      required to give the same weight to proffered mitigating factors as the defendant

      does. Gross v. State, 769 N.E.2d 1136, 1140 (Ind. 2002). Booker bears the

      burden of establishing “that the mitigating evidence is both significant and

      clearly supported by the record.” Anglemyer, 868 N.E.2d at 493 (citing Carter v.

      State, 711 N.E.2d 835, 838 (Ind. 1999)).


[8]   Booker argues that the trial court abused its discretion by not finding the

      following to be mitigating factors: his recent college graduation, the hardship on

      his dependent children, his mental health history, and his history of substance

      abuse. The record reflects that the trial court considered the proffered

      mitigating factors, but did not find them significant.




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[9]    First, Booker contends that the trial court erred by failing to give weight to his

       recent degree from Brown Mackie College. He relies on Hineman v. State, 292

       N.E.2d 618 (Ind. Ct. App. 1973), for the proposition that it is proper for the

       court to consider the defendant’s school life and academic achievements.1

       This Court made clear in Hineman that “[t]he trial court may in its discretion

       consider [the defendant’s] school life and academic achievements before

       commitment.” Id. at 624. In this case, the trial court considered Booker’s

       education, but found it not to be a mitigating circumstance. Sentencing Tr. p.

       22. That is within the sentencing court’s discretion.

[10]   Second, Booker argues that the eighteen-year sentence will cause undue

       hardship for his dependent children. “Many persons convicted of serious

       crimes have one or more children and, absent special circumstances, trial courts

       are not required to find that imprisonment will result in an undue hardship.”

       Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999). Booker has three minor,

       dependent children, and he pays $350 per month for their support. However,

       two of the children are seventeen and one is sixteen. The trial court observed

       that the minimum executed sentence would be six years. Even if the minimum

       sentence is imposed in this case, the children will be adults by the time Booker

       is released. Therefore, we see no abuse of discretion in the trial court’s decision

       not to give weight to the hardship on Booker’s children. See Weaver v. State, 845



       1
         Hineman objected to his sentence on the ground that the “precommitment report” contained his juvenile
       record and statements which characterized him as a troublemaker in high school. Hineman, 292 N.E.2d at
       623.

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       N.E.2d 1066, 1074 (Ind. Ct. App. 2006) (“[T]his mitigator can properly be

       assigned no weight when the defendant fails to show why incarceration for a

       particular term will cause more hardship than incarceration for a shorter

       term.”), trans. denied.


[11]   Next, Booker contends that the trial court should have considered his mental

       health history. This Court considers several factors in determining whether

       mental illness should be given mitigating weight. Those factors include “the

       extent of the inability to control behavior, the overall limit on function, the

       duration of the illness, and the nexus between the illness and the crime.”

       Covington v. State, 842 N.E.2d 345, 349 (Ind. 2006). Here, Booker has shown no

       connection between his self-reported “Borderline Anxiety Disorder” and raping

       P.J. Appellant’s App. p. 98. The trial judge properly declined to consider it.

[12]   Finally, Booker argues that the trial court should have considered his history of

       substance abuse to be a mitigating factor. We recognize that a history of

       substance abuse may be a mitigating circumstance. Field v. State, 843 N.E.2d

       1008, 1012 (Ind. Ct. App. 2006), trans. denied. However, “when a defendant is

       aware of a substance abuse problem but has not taken appropriate steps to treat

       it, the trial court does not abuse its discretion by rejecting the addiction as a

       mitigating circumstance.” Hape v. State, 903 N.E.2d 977, 1002 (Ind. Ct. App.

       2009), trans. denied. Given Booker’s numerous convictions for crimes related to

       substance abuse, and his prior attempts at treatment, the trial court could have

       reasonably concluded that Booker was aware of his substance abuse and failed

       to take appropriate measures to treat it. Therefore, we see no abuse of

       Court of Appeals of Indiana | Memorandum Decision 02A04-1505-CR-307 | December 23, 2015   Page 6 of 8
       discretion in the trial court’s decision not to give mitigating weight to his

       addictions.

[13]   Booker has not proven that his proffered mitigating circumstances are

       significant and clearly supported by the record. Therefore, we conclude that the

       trial court did not abuse its discretion.


                                   II. Inappropriate Sentence
[14]   Next Booker argues that his sentence is inappropriate given the nature of the

       offense and his character, and he asks us to revise his sentence under the

       authority of Indiana Appellate Rule 7(B). According to Indiana Code section

       35-50-2-5, a person who commits a Class B felony (for crimes committed prior

       to July 1, 2014) is subject to a minimum sentence of six years, a maximum of

       twenty years, and an advisory term of ten years. Here, Booker received a

       sentence of eighteen years.

[15]   Our appellate rules authorize revision of a 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.” Ind.

       Appellate Rule 7(B). “Our review under Appellate Rule 7(B) is extremely

       deferential to the trial court.” Dixon v. State, 825 N.E.2d 1269, 1271 (Ind. Ct.

       App. 2005), trans. denied. “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



       Court of Appeals of Indiana | Memorandum Decision 02A04-1505-CR-307 | December 23, 2015   Page 7 of 8
       character (such as substantial virtuous traits or persistent examples of good

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


[16]   Booker argues that his proffered mitigating factors—his recent graduation, his

       ability to provide for his minor children, his mental health history, and his

       history of substance abuse—combined with the testimony of his witnesses that

       he is a good father, son, and neighbor demonstrate good character. However,

       our review of the record also reveals that Booker’s criminal history spans

       twenty-seven years and includes convictions for ten misdemeanors and one

       felony. No prior attempts at rehabilitation have succeeded.

[17]   Further, Booker makes no argument with respect to the nature of the crime

       except to say that he “is not the most culpable offender that the Indiana Court

       of Appeals has scrutinized under these statutes.” Appellant’s Br. p. 14. While

       that may be true, it does not mitigate the fact that Booker entered P.J.’s

       apartment while she was asleep and unresponsive—which he knew because he

       saw her neighbor checking on her to be sure she was still breathing—and raped

       her.

[18]   We find that sentence revision is not supported by the nature of the offense, or

       by the character of the offender. Booker has not presented sufficiently

       compelling evidence to override the decision of the trial judge.

[19]   We affirm the decision of the trial court.

       Bailey, J., and Crone, J., concur.


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