MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D), this
                                                                   Dec 22 2017, 6:08 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                      CLERK
                                                                    Indiana Supreme Court
purpose of establishing the defense of res judicata,                   Court of Appeals
collateral estoppel, or the law of the case.                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Megan B. Quirk                                           Curtis T. Hill, Jr.
Muncie, Indiana                                          Indiana Attorney General

                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

William O. Jackson, Jr.,                                 December 22, 2017

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A02-1704-CR-949
        v.                                               Appeal from the Delaware Circuit
                                                         Court.
                                                         The Honorable Marianne Vorhees,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         18C01-1701-F5-4




Sharpnack, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 18A02-1704-CR-949 | December 22, 2017     Page 1 of 7
                                          Statement of the Case
[1]   William O. Jackson, Jr., appeals, contending that his advisory sentence of three

      years executed in the Indiana Department of Correction was inappropriate for
                                                                     1
      his conviction of Level 5 felony domestic battery. We affirm.


                                                    Issue
[2]   Jackson presents the following issue for our review: whether his executed

      sentence of three years is inappropriate in light of the nature of the offense and

      the character of the offender.


                                   Facts and Procedural History
[3]   Beginning on the evening of December 26, 2016, and continuing into the early

      morning hours of December 27, 2016, Jackson and his girlfriend of more than

      six years, D.F., were embroiled in verbal arguments at their home. Jackson,

      who was on pretrial, electronic, home detention for several pending felony

      charges in another matter, had been drinking alcohol and using cocaine and

      heroin.


[4]   At approximately 8:30 p.m., D.F. threw a salt shaker at Jackson and picked up

      a hammer to threaten him. D.F.’s cousin, who was present, intervened to calm

      the situation before it escalated. Police officers were called and dispatched to




      1
          Ind. Code § 35-42-2-1.3(c)(1) (2016).


      Court of Appeals of Indiana | Memorandum Decision 18A02-1704-CR-949 | December 22, 2017   Page 2 of 7
      the residence. Neither Jackson nor D.F. exhibited any signs of physical injury

      and each refused to leave the house. After that, the officers left the residence.


[5]   However, Jackson and D.F. continued arguing after the officers left. At some

      point, Jackson told D.F. that he “hated her.” Tr. Vol. II, p. 58. D.F. put on

      her boots and grabbed her coat to leave the house. When she went to the door,

      Jackson struck her in the back of the head with the base of a telephone three or

      four times, causing D.F.’s head to bleed profusely. Jackson then threatened

      D.F. by saying that he was going to disfigure her. After hearing that, D.F. ran

      to her mother’s house, which was nearby, and D.F.’s sister drove her to Ball

      Memorial Hospital for treatment.


[6]   Meanwhile, at 2:43 a.m., officers were dispatched to D.F. and Jackson’s

      residence following an uncompleted call to 911. D.F. was no longer at the

      house when the officers arrived. Jackson answered the door and had no

      observable signs of injuries. He explained to officers that he and D.F. had been

      in a verbal altercation and that she had left with a friend. He claimed that the

      officers were not needed at the residence.


[7]   Approximately twenty minutes later, however, at 3:04 a.m., officers were

      dispatched to the hospital where they found D.F. with a towel soaked in a red

      substance covering her head. After removing the towel, officers observed a

      large knot about the size of a golf ball on D.F.’s head that was actively bleeding.

      Officers photographed D.F.’s injury. She told them that she was the victim of a

      battery and that she wanted to make a report.


      Court of Appeals of Indiana | Memorandum Decision 18A02-1704-CR-949 | December 22, 2017   Page 3 of 7
[8]    Officers then returned to D.F. and Jackson’s residence where they found blood

       on the porch, the wall, the couch, and the base of the telephone. They also

       recovered D.F.’s coat, which was soaked with blood.


[9]    The State charged Jackson with class A misdemeanor domestic battery, with a

       Level 5 felony enhancement due to Jackson’s prior domestic battery conviction.

       Jackson’s jury trial was bifurcated and, at the conclusion of both phases, he was

       found guilty as charged. The trial court sentenced Jackson to the advisory term

       of three years executed in the Indiana Department of Correction with the

       recommendation that he be placed in purposeful incarceration through the

       Therapeutic Community Program. Jackson now appeals.


                                    Discussion and Decision
[10]   Jackson argues that his advisory sentence of three years executed in the

       Department of Correction with a recommendation that he placed in purposeful

       incarceration through the Therapeutic Community Program, is inappropriate in

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


[11]   Although Jackson attempts to argue that his sentencing placement–an executed

       sentence in the Department of Correction as opposed to probation–was

       inappropriate; it represents a blending of arguments involving an abuse of

       discretion in sentencing, and an inappropriate sentence. Jackson has failed to

       present a cogent argument in terms of an abuse of discretion. Therefore, we

       address his sentencing challenge under Indiana Appellate Rule 7(B).


[12]   Our Supreme Court has set forth the standard of review as follows:
       Court of Appeals of Indiana | Memorandum Decision 18A02-1704-CR-949 | December 22, 2017   Page 4 of 7
                Indiana Appellate Rule 7(B) provides, ‘[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.’ The principal role of appellate review
                should be to attempt to leaven the outliers . . . but not achieve a
                perceived “correct” result in each case. Defendant has the
                burden to persuade us that the sentence imposed by the trial
                court is inappropriate.
       Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017).


[13]   In considering the nature of Jackson’s offenses, the advisory sentence is

       the starting point the Legislature has selected as an appropriate sentence.

       Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218. When determining the appropriateness of a sentence that deviates from

       an advisory sentence, we consider whether there is anything more or less

       egregious about the offense as committed by the defendant that “makes it

       different from the typical offense accounted for by the legislature when it set

       the advisory sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App.

       2011).


[14]   Turning to the nature of Jackson’s offense, the facts reveal that after arguing

       with D.F., such that police officers were called to the house, they continued the

       verbal altercation. When Jackson told D.F. that he hated her, she put on her

       boots and grabbed her coat in an effort to leave the house. Jackson responded

       by repeatedly striking D.F. on the back of the head with the base of a telephone.

       She developed a wound that was the size of a golf ball from which she bled

       profusely. Jackson then told her that he was going to disfigure her. D.F. ran to

       Court of Appeals of Indiana | Memorandum Decision 18A02-1704-CR-949 | December 22, 2017   Page 5 of 7
       her mother’s house, which was nearby, after which her sister took her to the

       hospital for treatment of her injuries.


[15]   Nothing about Jackson’s argument regarding the nature of the offense suggests

       that a downward revision in his sentence is warranted.


[16]   Turning to Jackson’s character, we also conclude that there is nothing in his

       character warranting anything less than an advisory sentence executed in the

       Department of Correction. Jackson’s criminal history, which is significant,

       includes five prior felonies and three domestic battery offenses committed

       against the same victim.


[17]   Additionally, when Jackson committed the instant offense he was released on

       pretrial, electronic, home detention for pending felony charges in a different

       case. He had been using alcohol, heroin, and cocaine at home at the time he

       committed his current offense. Further, he admitted that he had used heroin in

       jail prior to his presentence investigation interview and admitted to using drugs

       regularly while on home detention. Jackson has not sought treatment for his

       drug addiction, which has been an issue for him since approximately 1992,

       despite having opportunities for rehabilitation.


[18]   When police officers arrived at the house, Jackson claimed that nothing more

       than a verbal altercation had continued between the two. He further

       downplayed the incident by also stating that D.F. had left with a friend.

       Because officers did not observe any injuries on Jackson, they left the scene.



       Court of Appeals of Indiana | Memorandum Decision 18A02-1704-CR-949 | December 22, 2017   Page 6 of 7
[19]   The jury was in the best position to determine what weight to give to D.F.’s

       participation in the ongoing argument, and chose to believe her version in

       entering a verdict against Jackson. Jackson’s attempts to introduce her actions

       into our review are not appropriate. It is his character and the nature of his

       offense against her that is subject to our review.


[20]   Jackson has not established that his advisory sentence with opportunities to

       improve himself and potentially receive sentence modification are inappropriate

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


                                                Conclusion
[21]   In light of the foregoing, the trial court’s decision is affirmed.


[22]   Affirmed.


       May, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A02-1704-CR-949 | December 22, 2017   Page 7 of 7
