Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                    Jul 30 2012, 9:21 am
court except for the purpose of
establishing the defense of res judicata,                           CLERK
                                                                  of the supreme court,
collateral estoppel, or the law of the case.                      court of appeals and
                                                                         tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

PATRICIA CARESS McMATH                           GREGORY F. ZOELLER
Indianapolis, Indiana                            Attorney General of Indiana

                                                 AARON J. SPOLARICH
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JAMES L. JOHNSON,                                )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 49A02-1112-CR-1100
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE MARION SUPERIOR COURT
                    The Honorable Christine R. Klineman, Commissioner
                            Cause No. 49G05-1108-FA-55534



                                       July 30, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          Appellant-defendant James L. Johnson appeals his seventy-five-year sentence that

was imposed following his convictions for Criminal Deviate Conduct,1 a class A felony;

Criminal Confinement,2 a class B felony, and being a Habitual Offender.3 Specifically,

Johnson argues that his sentence of seventy-five years is inappropriate in light of the

offenses and his character pursuant to Appellate Rule 7(B). Finding that Johnson’s

sentence is not inappropriate, we affirm the decision of the trial court.

                                           FACTS

          During March 2010, thirty-three-year-old K.R. worked at Labor Ready, a

temporary employment agency in Indianapolis. K.R. usually left home between 1:00 and

2:00 a.m. so that she could make the twelve-mile walk to Labor Ready by 5:30 a.m. to be

assigned employment for that day.

          On March 20, 2011, as K.R. made her usual twelve-mile walk to work, Johnson

stopped his truck on the road next to K.R. and asked her if she wanted a ride. The area

where Johnson approached K.R. is “remote and destitute. It’s a lot of vacant lots, vacant

houses, it’s pretty rural. But there is not a lot of per say [sic] pedestrian traffic.” Tr. p.

42-43. K.R. declined Johnson’s offer and continued walking towards Labor Ready.

          Johnson then exited his vehicle, pulled out a box cutter-style knife, and held the

knife to K.R.’s cheek. K.R. screamed for help, but Johnson put his hand over K.R.’s

1
    Ind. Code § 35-42-4-2.
2
    I.C. § 35-42-3-3.
3
    Ind. Code § 35-50-2-8.

                                              2
mouth and told her to “shut up.” Tr. p. 57. Johnson then blindfolded K.R., forced her

into his truck, and then drove away with K.R.’s head on his lap. K.R. attempted to free

herself by threatening Johnson with a canister of bug spray, but Johnson took the spray

from K.R. and threatened to kill her.

       After driving for an unknown distance, Johnson took the blindfolded K.R. from

his truck and carried her upstairs into a building.     When Johnson removed K.R.’s

blindfold, she was in a room with only a ladder, paint supplies, and an old mattress. K.R.

again screamed for help. Johnson covered K.R.’s mouth and placed the knife against her

throat, threatening to kill K.R.

       K.R. testified that Johnson then forced her to have sexual intercourse. K.R.

struggled, so Johnson tied K.R.’s hands behind her back. After the first instance of

vaginal intercourse, Johnson forced K.R. to perform oral sex on him. K.R. testified that

Johnson then forced her to have vaginal intercourse a second time. K.R. screamed for

help multiple times, and she feared that Johnson would suffocate her because he placed

his hands over her nose and mouth to silence her screams.

       Johnson then led K.R. to the bathroom, untied her hands, and forced K.R. to wash

her vaginal area using a water bottle. After K.R. retrieved her pants, Johnson blindfolded

K.R. again and forced her back into his truck. Johnson eventually released K.R. in an

unfamiliar area. K.R. attempted to call 911, but her hands were shaking so badly that she

could not use her cellular phone.



                                            3
       Roxie Johnson was driving with her sixteen-year-old daughter when K.R. ran up

to Roxie’s vehicle. Roxie could not understand K.R. because she was hysterical and

screaming for help.      K.R. eventually told Roxie that she had been raped; Roxie

immediately dialed 911.

       At approximately 12:30 p.m., Officer Brian Gabel of the Indianapolis

Metropolitan Police Department (IMPD) responded to Roxie’s 911 call. When Officer

Gabel spoke with K.R., he observed that “her hair seemed to be a mess. As she spoke her

voice quivered and her hands were shaking.” Tr. p. 44. Officer Gabel also described

K.R. as “very distraught looking, very scared,” and he “also observed red markings on

her wrist.” Id. K.R. did not know the identity of the man who attacked her, but she

described him as “a black male about 5’11, balding and [had a] mustache.” Tr. p. 48. An

ambulance transported K.R. to the hospital.

       At the hospital, K.R. met with Nurse Kelly Owens. K.R. recounted the details of

Johnson’s attack to Nurse Owens who then performed a sexual assault examination. As

part of the examination, Nurse Owens collected swabs from K.R.’s internal and external

vaginal area, anus, and mouth.     Before leaving the hospital, K.R. met with IMPD

Detective Bruce Smith. K.R. provided Detective Smith with a description of her attacker

and the details of the assault.

       Sarah Klassen, a forensic scientist with the Marion County Forensic Services

Agency, later tested the swabs collected from K.R. for the presence of seminal material

and saliva. Klassen identified seminal material on the internal and external vaginal swabs

                                              4
and on the anal swab. A trace amount of seminal material was also found on the oral

swab. Klassen then packaged the samples and transported them for DNA analysis.

       Detective Smith received the results of the DNA testing on July 28, 2011. On

each swab, DNA was found from two individuals, K.R. and Johnson. The DNA from the

seminal material found in K.R.’s vagina was Johnson’s. Johnson was also the source of

the sperm found on the anal swab. The sperm fraction from the oral swab matched

Johnson’s DNA as well. Detective Smith arrested Johnson pursuant to a warrant on

August 5, 2011. Detective Smith collected an additional DNA sample from Johnson and

discovered that Johnson owned a Ford Ranger pickup truck.

       On August 5, 2011, the State charged Johnson with two counts of rape, one count

of criminal deviate conduct, one count of robbery, and two counts of criminal

confinement. Appellant’s App. p. 20-22. The State filed notice that it was seeking a

habitual offender enhancement on October 19, 2011.       Id. at 61-62. After two days of

trial, a jury found Johnson guilty of criminal deviate conduct and one count of criminal

confinement.

       The trial court held a sentencing hearing on November 15, 2011. At the hearing,

Johnson offered mitigating factors, including his failing health and honorable discharge

from the armed forces. The trial court declined to find these factors as mitigating. In the

sentencing order, with respect to Johnson’s health, the trial court found “that this event

occurred 3 months earlier and there was no evidence that his health has since deteriorated

such that it should be considered a mitigating factor.” Appellant’s App. p. 112.

                                            5
      The trial court found Johnson’s “lengthy” criminal history and the nature of the

offense to be aggravating factors. Appellant’s App. p. 112-13. Due to the violent sexual

nature of Johnson’s previous felony convictions, the trial court attached the habitual

offender enhancement to Johnson’s conviction for criminal deviate conduct. The trial

court sentenced Johnson to forty-five years in the Department of Correction on the

criminal deviate conduct conviction and enhanced the sentence by thirty years because

Johnson was a habitual offender. As for the criminal confinement conviction, the trial

court sentenced Johnson to fifteen years in the Department of Correction. The trial court

ordered the sentences to be served concurrently, for an aggregate sentence of seventy-five

years. Johnson now appeals his sentence.

                            DISCUSSION AND DECISION

      Johnson requests that this court review and revise his sentence pursuant to Rule

7(B). Rule 7(B) provides that the “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.” A

defendant bears the burden of persuading the reviewing court that his or her sentence is

inappropriate when requesting Rule 7(B) review. Anglemyer v. State, 868 N.E.2d 482,

494 (Ind. 2007).

      Our Supreme Court has “long said 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). Therefore, a reviewing court

                                            6
should only engage in independent revision of a sentence in order to provide guidance to

the trial court. Id. at 1225. When reviewing the appropriateness of a sentence, the

reviewing court should “focus on the forest – the aggregate sentence-rather than the trees

– consecutive or concurrent, number of counts, or length of the sentence on any

individual count.” Id.

       In order to determine the appropriateness of a sentence, the reviewing court

examines the nature of the offense and the character of the offender. Childress, 848

N.E.2d 1073, 1080 (Ind. 2006). The nature of the offense prong “speaks to the statutory

presumptive sentence for the class of crimes to which the offense belongs.” Corbin v

State, 840 N.E.2d 424, 432 (Ind. Ct. App. 2006). “The character of the offender portion

of the standard refers to the general sentencing considerations and the relevant

aggravating and mitigating circumstances.” Id.

       Here, regarding the nature of the offenses, Johnson blindfolded K.R., forcing her

into his vehicle. Tr. p. 58. Johnson forced K.R. to perform oral sex on him after he tied

her hands behind her back. Id. at 67. Johnson verbally threatened to kill K.R. multiple

times throughout his assault and physically threatened K.R. by holding a knife to her face

and neck. Id. at 56-57, 59, 62. Johnson’s sexual assault left K.R. hysterical; her hands

shook so violently that she could not dial 911. Id. at 78. The nature of Johnson’s

offenses does not assist his argument that his sentence is inappropriate.

       As for Johnson’s character, he has a history of violent sexual crimes dating back

to 1966. As a sixteen-year-old, Johnson was adjudicated a delinquent for having a sexual

                                             7
relationship with an eleven-year-old girl. PSI p. 3. In December 1989, Johnson raped a

fifteen-year-old girl in a similar manner to the present offense. PSI p. 4. Specifically,

Johnson forced the girl into his vehicle while she was walking in an area close to where

Johnson abducted K.R. PSI p. 4. Johnson then took the victim to a landfill and raped

her. PSI p. 4-5. Johnson was also charged with two other rapes following a similar

pattern, but those charges were dismissed pursuant to a plea agreement.          PSI p. 5.

Finally, Johnson was convicted in 2000 of molesting his young stepdaughter. PSI p. 6-7.

“[T]he significance of a defendant’s prior criminal history in determining whether to

impose a sentence enhancement will vary ‘based on the gravity, nature and number of

prior offenses as they relate to the current offense.” Smith v State, 889 N.E.2d 261, 263

(Ind. 2008). Johnson’s egregious history of violent sexual crimes, including forcing

sexual intercourse on his young stepdaughter and a fifteen-year-old, is sufficiently related

to the present offense to justify an enhanced sentence.

       Aside from the convictions used in Johnson’s habitual offender enhancement,

Johnson has amassed seven misdemeanor convictions. Appellant’s App. p. 112. Also,

repeated attempts by the criminal justice system to rehabilitate Johnson have failed.

Johnson has violated the terms of his probation three times. PSI p. 4, 7. Johnson’s

history of violent sexual crimes and his failed attempts at rehabilitation demonstrate his

poor character and that his sentence is not inappropriate.

       Nevertheless, Johnson attempts to rebut his violent criminal history by contending

that “there are mitigators present that support imposing the advisory sentences when

                                             8
weighed against his criminal history.” Appellant’s Br. p. 6. Johnson’s statement is a

request that this court (1) find mitigating factors that the trial court explicitly rejected and

(2) reweigh those factors against Johnson’s criminal history. The proper standard of

review when a defendant challenges a trial court’s finding of mitigating and aggravating

circumstances is abuse of discretion. Anglemyer, 868 N.E. 2d at 490. Johnson makes no

such argument that the trial court abused its discretion with regard to mitigating factors.

Appellant’s Br. p. 4-6. Furthermore, under our advisory sentencing system, this court

will not reweigh aggravating and mitigating factors on direct appeal. See Anglemyer,

868 N.E.2d at 491 (stating that “[b]ecause the trial court no longer has any obligation to

‘weigh’ aggravating and mitigating factors against each other when imposing a sentence .

. . a trial court can not now be said to have abused its discretion in failing to ‘properly

weigh’ such factors”). Accordingly, Johnson’s request that this court reweigh his health

issues and military service against his criminal history is misplaced.

       Moreover, contrary to Johnson’s assertion, trial courts can use the nature of the

offense to enhance a defendant’s sentence on multiple counts regardless of the habitual

offender finding. Appellant’s Br. p. 5. In Pedraza v State, 887 N.E.2d 77 (Ind. 2008),

our Supreme Court addressed whether three sentencing scenarios constituted

impermissible double enhancement. Pedraza, 887 N.E.2d at 80-81. First, the Court

confronted whether an aggravator and habitual offender status could be based on the

same prior conviction. Id. at 80. Under advisory sentencing, “when a trial court uses the

same criminal history as an aggravator and as support for a habitual offender finding, it

                                               9
does not constitute impermissible double enhancement of the offender’s sentence.” Id.

Next, the Court addressed whether a trial court could find an aggravating factor and

elevate a criminal charge based on the same prior conviction. Id. Again, the Court held

that “this is no longer an inappropriate double enhancement.” Id.      Finally, it was

discussed whether a trial court can use the same prior conviction to enhance separate

counts. Id. at 81. Our Supreme Court found that “where enhancements of separate

counts are based on the same prior conviction, ordering these sentences to run

consecutively does constitute an improper double enhancement.” Id. Pedraza, however,

fails to support Johnson’s argument because Johnson was not sentenced to consecutive

terms. In sum, we conclude that Johnson’s sentence is not inappropriate in light of the

nature of his offenses and character.

       The judgment of the trial court is affirmed.

KIRSCH, J., and BROWN, J., concur.




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