MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any
                                                                   Aug 09 2017, 6:47 am
court except for the purpose of establishing
the defense of res judicata, collateral                                 CLERK
                                                                    Indiana Supreme Court
estoppel, or the law of the case.                                      Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jane Ann Noblitt                                         Curtis T. Hill, Jr.
Columbus, Indiana                                        Attorney General of Indiana

                                                         Tyler G. Banks
                                                         Richard Carey Webster
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher O. May,                                      August 9, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         03A01-1610-CR-2384
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
State of Indiana,                                        The Honorable James D. Worton,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         03D01-1603-F5-1299



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A01-1610-CR-2384 | August 9, 2017       Page 1 of 8
[1]   Christopher O. May appeals his seven-year aggregate sentence for his

      convictions of Level 5 felony battery against a public safety official, 1 Class A

      misdemeanor resisting law enforcement, 2 and Class B misdemeanor criminal

      recklessness. 3 May argues his sentence is inappropriate in light of the nature of

      his offenses and his character. We affirm.



                                Facts and Procedural History
[2]   On February 27, 2016, Officer James Frederick of the Columbus Police

      Department received information that multiple callers had reported a truck

      driving dangerously on the roadway. Officer Frederick proceeded to the area to

      investigate, and he eventually arrived at a crash scene. A truck, driven by May,

      had crashed into another car, and May was outside the crashed truck, flailing

      his arms around, and “appeared to be holding a stun gun.” (App. Vol. II at 13.)


[3]   Officer Frederick initially held May at gunpoint and ordered him to the ground.

      May did not comply. Instead, he looked at Officer Frederick and asked if

      Officer Frederick’s gun was real. Officer Frederick switched from his firearm to

      his Taser. The first attempt to subdue May with the Taser was unsuccessful

      because the probes failed to penetrate May’s body. May approached Officer

      Frederick, “activated his stun gun, and [Officer Frederick] could hear the



      1
          Ind. Code § 35-42-2-1(b)(1) & (f)(5)(A) (2014).
      2
          Ind. Code § 35-44.1-3-1(a)(1) (2014).
      3
          Ind. Code § 35-42-2-2(a) (2014).


      Court of Appeals of Indiana | Memorandum Decision 03A01-1610-CR-2384 | August 9, 2017   Page 2 of 8
      electric current.” (Id.) Officer Frederick managed to reload his Taser and

      deploy it a second time at May. This time, May fell to the ground, and another

      officer who had arrived at the scene helped handcuff May.


[4]   The police took May to the hospital to have his blood drawn pursuant to a

      search warrant. Officer Ben Quesenbery read the search warrant to May.

      Officer Quesenbery was in May’s hospital room with two other officers and

      medical staff. Officer Quesenbery was in the process of searching May for

      weapons when May kicked Officer Quesenbery in the neck. Officer

      Quesenbery testified the kick was “extremely painful,” (Tr. at 35), and although

      he did not have any bruising, he had “a very sore and stiff neck the next day.”

      (Id. at 36.)


[5]   May was charged with Level 5 felony battery against a public safety official,

      Level 6 felony intimidation, 4 Class A misdemeanor operating a vehicle while

      intoxicated endangering a person, 5 Class A misdemeanor operating a motor

      vehicle without ever receiving a driver’s license, 6 Class A misdemeanor resisting

      law enforcement, and Class B misdemeanor criminal recklessness. May was

      offered, and accepted, a plea agreement. The plea agreement provided the




      4
          Ind. Code § 35-45-2-1 (2014).
      5
          Ind. Code § 9-30-5-2 (2001).
      6
       Ind. Code § 9-24-18-1 (2015). Operating a motor vehicle without ever receiving a driver’s license is defined
      as a Class C misdemeanor. Ind. Code § 9-24-18-1. However, the crime becomes a Class A misdemeanor
      when a defendant already has a prior unrelated conviction of operating without ever receiving a license, and
      May had a prior conviction.

      Court of Appeals of Indiana | Memorandum Decision 03A01-1610-CR-2384 | August 9, 2017             Page 3 of 8
      Court would recommend May’s placement in the Purposeful Incarceration

      Program and indicated May understood he could be sentenced within the

      statutory range for each offense.


[6]   May pled guilty to Level 5 felony battery, Class A misdemeanor resisting law

      enforcement, and Class B misdemeanor criminal recklessness in exchange for

      dismissal of the other three charges. The court sentenced May to six years for

      battery, one year for resisting law enforcement, and 180 days for criminal

      recklessness. The resisting law enforcement and criminal recklessness sentences

      were ordered served concurrent to one another and consecutive to the battery

      sentence, for an aggregate sentence of seven years.



                                 Discussion and Decision
[7]   May argues his seven-year sentence is inappropriate under Indiana Appellate

      Rule 7(B). Under this rule, we may revise a sentence if, after due consideration

      of the trial court’s decision, we find the sentence inappropriate in light of the

      nature of the offense and the character of the offender. Williams v. State, 891

      N.E.2d 621, 633 (Ind. Ct. App. 2008). Our review is deferential to the trial

      court’s decision, and our goal is to determine whether the defendant’s sentence

      is inappropriate, not whether some other sentence would be more appropriate.

      Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012), reh’g denied. The appellant

      bears the burden of demonstrating his sentence is inappropriate. Childress v.

      State, 848 N.E.2d 1073, 1080 (Ind. 2006). In reviewing May’s sentence, we

      “should focus on the forest – the aggregate sentence – rather than the trees” –

      Court of Appeals of Indiana | Memorandum Decision 03A01-1610-CR-2384 | August 9, 2017   Page 4 of 8
      the individual sentences. See Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

      2008). Whether a sentence is inappropriate depends on, “our sense of 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.” Id. at 1224.


[8]   When considering the nature of the offense, the advisory sentence is the starting

      point to determine the appropriateness of a sentence. Anglemyer v. State, 868

      N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007). The

      advisory sentence for a Level 5 felony is three years, with a sentencing range

      from one year to six years. Ind. Code § 35-50-2-6(b) (2014). “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). A conviction of a Class B

      misdemeanor carries a sentence of no more than 180 days. Ind. Code § 35-50-

      3-3 (1977). We determine the appropriateness of a deviation from the advisory

      sentence by reviewing whether there is anything about May’s offenses that

      makes them different from the “typical” offenses accounted for by the

      legislature when it set the advisory sentence. See Rich v. State, 890 N.E.2d 44,

      54 (Ind. Ct. App. 2008), trans. denied.


[9]   May received the maximum available sentence for each of his three convictions,

      for an aggregate sentence of seven years. The trial court found the nature of his

      battery conviction and “the harm, injury, loss or damage . . . to the [Officer] in

      this case was significant and greater than the elements necessary to approve

      [sic] the commission of the offense.” (Tr. at 45.) The trial court so found

      because, while Officer Quesenbery did not suffer a permanent injury, offenses

      Court of Appeals of Indiana | Memorandum Decision 03A01-1610-CR-2384 | August 9, 2017   Page 5 of 8
       committed against police officers, such as the kick to the neck, “have a lot more

       long-lasting [effect] to them psychologically [and] emotionally.” (Id.)


[10]   May contends the nature of the battery offense for his kick to Officer

       Quesenbery’s neck did not justify an enhanced sentence because it did not cause

       the officer permanent damage. In support of this argument, May points us to

       Indiana Code section 35-38-1-7.1(b)(1) (2015), which states the trial court, when

       imposing a sentence, may consider that “the crime neither caused nor

       threatened serious harm to persons or property, or the person did not

       contemplate that it would do so.” However, the trial court did consider the

       injury and whether it threatened serious harm to the officer. The trial court, in

       its discretion, chose not to find a mitigator in the fact that Officer Quesenbery

       did not suffer permanent injury, nor was the trial court required to so find. See

       Shane v. State, 769 N.E.2d 1195, 1199 (Ind. Ct. App. 2002) (“a trial court is not

       required to find mitigating factors or give them the same weight as the

       defendant”). While May did not permanently injure Officer Quesenbery, May

       caused injury when he battered Officer Quesenbery at the hospital, May failed

       to follow Officer Frederick’s commands at the scene of the accident, and May

       committed criminal recklessness by driving recklessly and causing a crash while

       on methamphetamine and heroin. In light of May’s offenses, we cannot say a

       seven-year sentence is inappropriate.


[11]   Regarding May’s character, the pre-sentence investigation report shows May

       has a long history of substance abuse. He has been consuming alcohol, using

       inhalants, and smoking marijuana since the age of eight. At age twelve, May

       Court of Appeals of Indiana | Memorandum Decision 03A01-1610-CR-2384 | August 9, 2017   Page 6 of 8
       began using LSD, heroin, and methamphetamine. He stated he uses controlled

       substances daily. May admitted he was on methamphetamine and heroin at the

       time of the crash.


[12]   “When considering the character of the offender, one relevant fact is the

       defendant’s criminal history.” Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct.

       App. 2015), trans. denied. The trial court found May’s long criminal history to

       be significant, noting his criminal history includes “violence,” “felonies,” and

       “crimes of dishonesty.” (Tr. at 44.) More specifically, his criminal history is

       comprised of seven felony convictions and eight misdemeanor convictions for a

       variety of offenses, such as theft, possession of controlled substances, criminal

       mischief, carrying a handgun without a license, and conversion. May also had

       three cases pending at the time of this sentencing, his probation had been

       revoked in the past, and while in jail for these crimes, May engaged in

       “indecent exposure, battery upon another person, [and] disorderly conduct.”

       (Id. at 47.) Finally, May has been involved with a gang called the “Bloods” for

       six years. (App. Vol. III at 11.)


[13]   On appeal, May argues that while he does possess a lengthy criminal history, he

       is remorseful for his past offenses, accepts responsibility for those offenses, and

       recognizes his need for help in order to turn his life around. However, May’s

       gang involvement, abuse of illegal substances, and failure to be rehabilitated by

       numerous past legal consequences demonstrate his disregard for the law and the

       appropriateness of more severe punishment. Thus, May has not demonstrated

       his sentence is inappropriate based on his character and offenses. See Gracia v.

       Court of Appeals of Indiana | Memorandum Decision 03A01-1610-CR-2384 | August 9, 2017   Page 7 of 8
       State, 976 N.E.2d 85, 91 (Ind. Ct. App. 2012) (eight-year sentence not

       inappropriate when defendant punched and kicked his arresting officers and

       had an extensive criminal history), trans. denied.



                                               Conclusion
[14]   May has failed to demonstrate his sentence is inappropriate considering the

       nature of his offenses and his character. Accordingly, we affirm.


[15]   Affirmed.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 03A01-1610-CR-2384 | August 9, 2017   Page 8 of 8
