MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Aug 16 2018, 9:19 am
regarded as precedent or cited before any
                                                                          CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
the defense of res judicata, collateral                                    and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Carlos I. Carrillo                                       Curtis T. Hill, Jr.
Greenwood, Indiana                                       Attorney General of Indiana
                                                         Lee M. Stoy, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Thomas Lee Campbell,                                     August 16, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-598
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Randy J. Williams,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79D01-1705-F5-67



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-598 | August 16, 2018                Page 1 of 10
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Thomas Lee Campbell (Campbell), appeals his

      conviction for domestic battery by means of a deadly weapon, a Level 5 felony,

      Ind. Code § 35-42-2-1.3


[2]   We affirm.


                                                   ISSUES
[3]   Campbell presents three issues on appeal, which we restate as:


          (1) Whether the trial court’s merger of the charges Campbell was found

              guilty of with his battery conviction was adequate to cure any potential

              double jeopardy concerns;

          (2) Whether the State presented sufficient evidence beyond a reasonable

              doubt to support Campbell’s conviction; and

          (3) Whether Campbell’s sentence is inappropriate in light of the nature of the

              offense and his character.


                      FACTS AND PROCEDURAL HISTORY
[4]   On May 20, 2017, after going to the grocery store and the laundromat, Jill

      Vestal (Vestal) returned to the home that she shared with her then-boyfriend of

      two years, Campbell. They had been living together for six months in

      Lafayette, Indiana. When Vestal arrived, Campbell was drunk, and a few

      hours later, he “passed out.” (Transcript p. 8). While Campbell was passed

      out, Vestal changed the channel on the television. Campbell woke up and

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-598 | August 16, 2018   Page 2 of 10
      began “screaming” about changing the TV channel. (Tr. p. 9). Vestal

      eventually walked to the kitchen, and was followed by Campbell, who grabbed

      a knife with a wooden handle and jagged edge. As Campbell swung the knife

      at Vestal, she managed to jump back, only sustaining a small puncture wound

      and a scratch on her chest. “[H]e [was] yelling and swearing when he was

      chasing [Vestal] around the residence with the knife.” (Tr. p. 27). Vestal took

      her car keys and cell phone and ran out of the house. Once inside her car, she

      called 911.


[5]   Lafayette Police Officer Blake Barker-Switzer (Officer Barker-Switzer)

      responded to the 911 call. After arresting Campbell, Officer Barker-Switzer

      conducted a protective sweep of the house and “[a]s [he] was walking through

      the kitchen [he] [saw] a wooden handled serrated kitchen knife sitting on the

      stove.” (Tr. p. 32). “When [he] examined the knife closer, [he] found it

      covered in grease with the exception of the very, very, very, very tip of the

      blade.” (Tr. p. 36). After close examination of Vestal’s injury, Officer Barker-

      Switzer determined it was the result of a puncture wound.


[6]   On May 25, 2017, the State charged Campbell with Count I, domestic battery

      by means of a deadly weapon, a Level 5 felony, I.C. § 35-42-2-1.3; Count II,

      battery by means of a deadly weapon, a Level 5 felony, I.C. § 35-42-2-1(c);

      Count III, intimidation, a Level 5 felony, I.C. § 35-45-2-1(a); Count IV,

      criminal recklessness, a Level 6 felony, I.C. § 35-42-2-2; and Count V, domestic

      battery, a Level 6 felony, I.C. § 35-42-2-1.3(a). On January 10, 2018, the trial

      court conducted a bench trial. During the trial, Campbell testified that he did

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-598 | August 16, 2018   Page 3 of 10
      not touch Vestal but that she had scratched herself repeatedly on the chest while

      she sat in her truck. At the close of the evidence, the trial court found Campbell

      guilty on all Counts.


[7]   On February 8, 2018, the trial court conducted a sentencing hearing during

      which the trial court entered judgment and conviction as to the Level 5

      domestic battery by means of a deadly weapon and merged the other guilty

      Counts into that conviction. The trial court sentenced Campbell to five years at

      the Department of Correction with one year executed, two years suspended to

      community corrections, and one year suspended to probation.


[8]   Campbell now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
                                              I. Merger of Counts


[9]   Campbell first contends that the trial court should have vacated Campbell’s

      convictions for Counts II through V to remedy any potential double jeopardy

      concerns. A double jeopardy violation occurs when judgments of conviction

      are entered and cannot be remedied by the practical effect of concurrent

      sentences or by merger after a conviction has been entered. Gregory v. State, 885

      N.E.2d 697, 703 (Ind. Ct. App. 2008), trans. denied. Thus, “[a] trial; court’s act

      of merging, without also vacating the conviction is not sufficient to cure the

      double jeopardy violation.” Id. However, “a merged offense for which a

      defendant is found guilty, but on which there is neither a judgment nor a

      sentence, is unproblematic as far as double jeopardy is concerned. Green v.
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-598 | August 16, 2018   Page 4 of 10
       State, 856 N.E.2d 703, 704 (Ind. 2006); See also Kovats v. State, 982 N.E.2d 409,

       414, 415 (Ind. Ct. App. 2013) (If a trial court does not formally enter a

       judgment of conviction on a jury verdict of guilty, then there is no requirement

       that the trial court vacate the conviction, and merger is appropriate to cure any

       double jeopardy issues).


[10]   At the close of the bench trial, the trial court found Campbell guilty as charged.

       During the sentencing hearing and in its sentencing order, the trial court

       sentenced Campbell for Count I only, with all other Counts merging into Count

       I. 1 There is no evidence before us that the trial court entered judgment of

       conviction for Counts II through V. Accordingly, merger was adequate to

       remedy any potential double jeopardy concerns. See Green, 856 N.E.2d at 704.


                                          II. Sufficiency of the Evidence


[11]   Next, Campbell contends that the State failed to present sufficient evidence

       beyond a reasonable doubt to support his conviction for domestic battery by

       means of a deadly weapon. When reviewing the sufficiency of the evidence to

       support a conviction, appellate courts must consider only the probative

       evidence and reasonable inferences supporting the judgment. Drane v. State, 867

       N.E.2d 144, 146-47 (Ind. 2007). It is the fact-finder’s role, not that of appellate

       courts, to assess witness credibility and weigh the evidence to determine




       1
         During the sentencing hearing, the trial court explicitly noted “so we will show Judgment of Conviction
       entered then as to Count 1 Domestic Battery with a Deadly Weapon, a Level 5 Felony, as the parties agree
       that all of the remaining Counts merge into that Count.” (Tr. p. 71).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-598 | August 16, 2018                 Page 5 of 10
       whether it is sufficient to support a conviction. Id. To preserve this structure,

       when appellate courts are confronted with conflicting evidence, they must

       consider it most favorably to the trial court’s ruling. Id. Appellate courts affirm

       the conviction unless no reasonable fact-finder could find the elements of the

       crime proven beyond a reasonable doubt. Id. It is therefore not necessary that

       the evidence overcome every reasonable hypothesis of innocence. Id. The

       evidence is sufficient if an inference may reasonably be drawn from it to support

       the judgment. See id. Upon review, appellate courts do not reweigh the

       evidence or assess the credibility of the witnesses. Stewart v. State, 768 N.E.2d

       433, 435 (Ind. 2002).


[12]   To convict Campbell of a Level 5 felony domestic battery by means of a deadly

       weapon, the State was required to establish beyond a reasonable doubt that

       Campbell knowingly or intentionally touched a family or household member

       with a deadly weapon in a rude, angry or insolent manner. See I.C. § 35-42-2-

       1.3(a)(1) & (c)(2). Not contesting any specific element of the charge, Campbell

       focuses on the discrepancies between the witnesses’ testimonies. Specifically,

       he asserts that Vestal, Officer Barker-Switzer, and Campbell all presented

       different statements about the nature of the injury. Vestal claimed that she was

       cut in a bottom to top motion, whereas Officer Barker-Switzer believed it was a

       top to bottom angle, and Campbell testified that he had observed Vestal

       scratching herself with her fingernails. In other words, Campbell’s argument

       amounts to a request to reweigh the evidence and judge the credibility of the

       witnesses. “It is for the trier of fact to resolve conflicts in the evidence and to


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-598 | August 16, 2018   Page 6 of 10
       decide which witnesses to believe or disbelieve.” Kilpatrick v. State, 746

       N.E.2d 52, 61 (Ind. 2001).


[13]   Moreover, considering the evidence most favorable to the judgment, the

       evidence is sufficient to sustain Campbell’s conviction. Vestal testified that after

       changing the TV channel, Campbell started screaming at her. After the

       followed her into the kitchen, he picked up a knife, “swung it at [her] and [she]

       jumped back.” (Tr. p. 24). By moving out of the way, Vestal only sustained a

       small puncture wound on her chest. Officer Barker-Switzer affirmed the

       presence of the knife in the kitchen and Vestal’s puncture wound. Accordingly,

       we affirm Campbell’s conviction for battery by means of a deadly weapon.


                                       III. Appropriateness of Sentence


[14]   Next, Campbell complains that the sentence imposed is inappropriate. This

       court has the authority to 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.” See Ind. Appellate Rule 7(B). “The 7(B) appropriateness inquiry is a

       discretionary exercise of the appellate court’s judgment, not unlike the trial

       court’s discretionary sentencing determination.” Knapp v. State, 9 N.E.3d 1274,

       1291-92 (Ind. 2014), cert. denied, 135 S.Ct. 978 (2015). “On appeal, though, we

       conduct that review with substantial deference and give due consideration to

       the trial court’s decision—since the principal role of our review is to attempt to

       leaven the outliers, and not to achieve a perceived correct sentence.” Id. at


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-598 | August 16, 2018   Page 7 of 10
       1292 (internal quotation marks omitted). Accordingly, the question under

       Appellate Rule 7(B) is not whether another sentence is more appropriate;

       rather, the question is whether the sentence imposed is inappropriate. Conley v.

       State, 972 N.E.2d 864, 876 (Ind. 2012) (internal quotation marks omitted). The

       defendant has the burden of persuading us that his sentence is inappropriate.

       King, 894 N.E.2d at 267.


[15]   “‘[R]egarding the nature of the offense, the advisory sentence is the starting

       point the Legislature has selected as an appropriate sentence for the crime

       committed.’” Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016) (quoting

       Anglemyer, 868 N.E.2d at 494). The advisory sentence of a Level 5 felony is

       imprisonment “for a fixed term of between one (1) months and six (6) years,

       with the advisory sentence being three (3) years.” I.C. § 35-50-2-6(b). The trial

       court sentenced Campbell to five years in the Department of Correction with

       one year executed, two years suspended to community corrections, and one

       years suspended to probation.


[16]   In the heat of a trivial domestic argument about a TV channel, Campbell

       escalated the discussion by picking up a weapon and using it. Although

       Campbell asserts that “Vestal’s injury did not require hospitalization and/or

       treatment,” the only reason the injuries were rather minimal was because Vestal

       was able to jump back when Campbell thrust the knife at her. (Appellant’s Br.

       p. 13). Accordingly, the extent of Vestal’s injury was not a result of Campbell

       showing “restraint, regard, and lack of brutality.” Stephenson v. State, 29 N.E.3d

       111, 122 (Ind. 2015).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-598 | August 16, 2018   Page 8 of 10
[17]   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 defendant’s

       prior criminal history will vary “based on the gravity, nature and number of

       prior offense as they relate to the current offense.” Smith v. State, 889 N.E.2d

       261, 263 (Ind. 2008). Campbell’ criminal history spans more than forty years.

       During this time, Campbell has collected twenty misdemeanor convictions, and

       fourteen felony convictions. He was convicted of domestic battery in 2000.

       Even though there is a fourteen-year gap between the instant offense and the

       commission of Campbell’s last offense, Campbell was not leading a law abiding

       life as he admitted to smoking marijuana twice per week between the ages of

       sixteen and fifty-eight. As pointed out by the trial court during sentencing,

       “when you are using and possessing illegal drugs during this entire period of

       time, [] it negates the position that it is a good and lawful behavior for a good

       period of time.” In order to support his addiction habit, he started writing bad

       checks; however, it should be noted that he has paid restitution on every bad

       check since then. Campbell had six petitions to revoke his bond filed against

       him and, while on bond in the current case, he committed another crime.

       Despite a guilty finding after a bench trial, Campbell continued to blame Vestal

       and thinks “she is all about herself.” (Appellant’s App. Vol. III, p. 18).


[18]   In light on the evidence before us, Campbell has not met his burden of

       persuading this court that the nature of the offense and his character make his

       sentence inappropriate. We affirm the trial court’s sentence.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-598 | August 16, 2018   Page 9 of 10
                                             CONCLUSION
[19]   Based on the foregoing, we hold that (1) merger of the charges Campbell was

       found guilty of with his battery conviction was adequate to cure any potential

       double jeopardy concerns; (2) the State presented sufficient evidence beyond a

       reasonable doubt to support Campbell’s conviction; and (3) Campbell’s

       sentence is not inappropriate in light of the nature of the offense and his

       character


       Affirmed.


       Vaidik, C. J. and Kirsch, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-598 | August 16, 2018   Page 10 of 10
