Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                        FILED
regarded as precedent or cited before                      Aug 30 2012, 9:17 am
any 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:

MARCE GONZALEZ, JR.                                 GREGORY F. ZOELLER
Dyer, Indiana                                       Attorney General of Indiana

                                                    ANDREW R. FALK
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

KEITH ALLEN ABELL,                                  )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 45A03-1202-CR-77
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                       APPEAL FROM THE LAKE SUPERIOR COURT
                          The Honorable Thomas P. Stefaniak, Judge
                               Cause No. 45G04-1010-FB-96



                                         August 30, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
       Appellant-Defendant Keith Allen Abell appeals following his convictions for Class B

felony Attempted Rape,1 Class B felony Attempted Criminal Deviate Conduct,2 Class B

felony Criminal Deviate Conduct,3 Class C felony Criminal Confinement,4 Class D felony

Sexual Battery,5 Class D felony Criminal Confinement,6 and Class D felony Residential

Entry.7 On appeal, Abell challenges the appropriateness of his aggregate thirty-six-year

executed sentence. We affirm.

                           FACTS AND PROCEDURAL HISTORY

       At all times relevant to this appeal, ninety-one-year-old M.S. lived independently in a

duplex apartment in Lowell. Though she did nearly all of her own shopping and cleaning,

M.S. occasionally relied on her neighbor, Wanda, and Wanda’s son, Abell, to help her around

her home.

       On September 12, 2010, at a little after two in the morning, M.S. was awakened by the

sound of “a few little noises that [she] was not used to hearing.” Tr. p. 38. M.S. sat up in her

bed and saw that her back door was open. This surprised M.S. because she was meticulous

about making sure her doors were locked. After going to investigate the source of the noise,


       1
           Ind. Code §§ 35-42-4-1 (2010) and 35-41-5-1 (2010).
       2
           Ind. Code §§ 35-42-4-2 (2010) and 35-41-5-1.
       3
           Ind. Code §§ 35-42-4-2.
       4
           Ind. Code §§ 35-42-3-3 (2010).
       5
           Ind. Code §§ 35-42-4-8 (2010).
       6
           Ind. Code §§ 35-42-3-3.
       7
           Ind. Code §§ 35-43-2-1.5 (2010).
                                                   2
M.S. turned around and saw a tall man standing in her spare bedroom. M.S. asked, “Is that

you Keith?” to which the man responded “I am not your neighbor Keith.” Tr. p. 39. M.S.

thought this response was strange because she had not mentioned anything about “Keith”

being her neighbor. Abell then grabbed M.S., turned her around, and forced her into her

bedroom. Abell whispered to M.S. that he was going to “f***” her. Tr. p. 44.

       After entering M.S.’s bedroom, Abell forced M.S. onto her bed and began thrusting

himself at her. Abell stripped M.S. of her clothing, incontinence pad, and Depends. For

approximately the next two hours, Abell fondled M.S. and groped her body parts. Abell

attempted to have sex with M.S. by trying to penetrate both her anus and her vagina with his

penis. Abell also stuck his erect penis in M.S.’s mouth and ejaculated on her stomach.

Throughout the assault, M.S. tried to resist, but Abell held her down tightly, bruising her

arms and making it difficult for her to breathe. After about two hours, Abell left.

       M.S. waited approximately ten to fifteen minutes after Abell left before calling the

police for fear that he would come back. M.S. stated that she had tried not to look at her

attacker’s face during the assault for fear that he would kill her. Police found a t-shirt on

M.S.’s bedroom floor that matched the shirt that Abell had been wearing earlier that evening

at a local bar. Police also found a recently burned cigarette on M.S.’s lawn that was the same

brand that Abell smoked. After receiving a warrant, police recovered a pair of Abell’s

underwear which had both Abell’s and M.S.’s DNA on it.

       On October 5, 2010, the State charged Abell with one count each of Class B felony

attempted rape, Class B felony attempted criminal deviate conduct, Class B felony criminal

                                              3
deviate conduct, Class C felony criminal confinement, Class D felony sexual battery, Class D

felony criminal confinement, and Class D felony residential entry. On July 27, 2011, a jury

found Abell guilty as charged. On January 27, 2012, the trial court sentenced Abell to

eighteen years of incarceration for the Class B felony attempted rape, attempted sexual

deviate conduct, and sexual deviate conduct convictions, six years for the Class C felony

criminal confinement conviction,8 and twenty months for the Class D felony residential entry

conviction. The trial court ordered that all of the sentences would run concurrently with the

others, except for the eighteen-year sentence for Class B felony criminal deviate conduct,

which would run consecutively to the other sentences for an aggregate term of thirty-six

years. This belated appeal follows.

                                 DISCUSSION AND DECISION

        In arguing that his thirty-six-year sentence is inappropriate, Abell contends that

although the nature of his actions is such that might warrant the imposed sentence, his

sentence is nonetheless inappropriate in light of his low intelligence and diminished

intellectual capacities due to long-term alcohol abuse, as well as the fact that the was

intoxicated when he committed the acts in question. Indiana Appellate 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.” In considering whether a sentence is


        8
         The conviction for Class D felony criminal confinement was merged into the Class C felony criminal
confinement.

                                                    4
appropriate, we evaluate 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.

Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The defendant bears the burden of

persuading us that his sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind.

Ct. App. 2008). Upon review, we cannot agree with Abell’s claim that his sentence is

inappropriate.

       Abell does not argue that his sentence is inappropriate with respect to the nature of his

offenses, but rather argues that his actions were “an aberration not consistent with [his]

character.” Appellant’s Br. p. 7. As Abell seems to acknowledge, the nature of his actions

was truly heinous. Abell entered the apartment of his ninety-one-year-old neighbor in the

middle of the night without permission and sexually assaulted her for nearly two hours.

During the assault, Abell attempted to penetrate his victim’s anus and vagina with his penis

and inserted his penis in her mouth. He held his victim so tightly during the assault that her

arms bruised and she had trouble breathing. Abell’s actions humiliated and deeply scarred

his elderly victim and stole her dignity, sense of privacy, sense of safety in her home, and

independence.

       With respect to his character, Abell acknowledges that he has prior criminal

convictions but argues that the thirty-six-year sentence is nonetheless inappropriate. Abell’s

criminal history includes felony convictions for battery and intimidation, as well as

misdemeanor convictions for assisting a criminal and battery resulting in bodily injury.

Abell’s criminal history also includes a juvenile adjudication for being “incorrigible” and at

                                               5
least one unsuccessful termination of probation. Appellant’s App. p. 130. However, despite

his juvenile adjudication, criminal convictions, and prior failure to successfully complete

probation, Abell argues that his character is such that his horrific acts should be considered

an aberration, rather than the norm.

       Abell argues that this supposed “aberration” inconsistent with his character was

caused by his low intelligence, his high level of intoxication at the time he committed the

instant crimes, and his diminished intellectual capacities stemming from his long-term

alcohol abuse. In support, Abell points to the testimony of Dr. Robert Hanlon, a licensed

psychologist specializing in the psychological abnormalities associated with brain disorders

and brain damage, who testified that in his opinion, Abell had an IQ of 66 which is in the

first percentile and indicates a low level of intelligence. Dr. Hanlon also opined that while he

does not believe that Abell suffers from a developmental disorder, he does believe that

Abell’s intellectual functions have likely been compromised by high-volume alcohol abuse

over time. The trial court indicated that it considered Dr. Hanlon’s testimony to be “very

compelling” and found Abell’s low intelligence and the negative impact Abell’s long-term

alcohol abuse has had on his intellectual capabilities to be mitigating circumstances at

sentencing. Tr. p. 499. The trial court also considered the fact that Abell “in all likelihood

was intoxicated” at the time he committed the instant crimes as a mitigating circumstance.

       However, notwithstanding these mitigating circumstances, the trial court determined

that the nature of Abell’s actions, Abell’s criminal history, and the fact that Abell had

established a position of trust with his victim by helping her around her home and even

                                               6
helping to save her life on a prior occasion, warranted a thirty-six-year sentence. In imposing

this sentence, the trial court again acknowledged that even though Abell’s cognitive abilities

are diminished, he seems able to function well in his day-to-day life.

       Abell also points to his victim’s testimony that, up until the time of the assault, he had

been a good neighbor, and that on one occasion, had even helped to save her life. While

being a “good neighbor” and helping to save someone’s life is honorable, we cannot say that

such acts, without more, are such that would convince us that Abell’s criminal actions were

aberrations inconsistent with an otherwise good character. Abell’s prior criminal convictions

indicate that he has a history of committing violent acts, including misdemeanor and felony

convictions for battery resulting in bodily injury, and prior leniency has not deterred future

criminal acts. Abell was clearly not being a “good neighbor” when he entered his victim’s

home and sexually assaulted her for nearly two hours. Abell was not even deterred from

committing his criminal acts when his victim recognized him, but rather attempted to fool his

victim by saying “I am not your neighbor Keith.” Tr. p. 39.

       Furthermore, to the extent that Abell argues that his sentences for Class B felony

attempted rape and Class B felony criminal deviate conduct should have been ordered to run

concurrently rather than consecutively, we disagree. In making this claim, Abell relies on the

Indiana Supreme Court’s opinions in Archer v. State, 689 N.E.2d 678 (Ind. 1998) and Weeks

v. State, 697 N.E.2d 28 (Ind. 1998). However, we note that in both Archer and Weeks, the

defendants suffered from serious mental illness such as anti-social disorder, intermittent

explosive disorder, schizophrenia, schizo-affective disorder, and bipolar disorder. Abell,

                                               7
however, does not suffer from any serious mental illness or developmental disorder. In

addition, while Dr. Hanlon testified that Abell suffered from low intelligence, Dr. Hanlon

further testified that Abell was nonetheless capable of distinguishing right from wrong.

       Again, Abell entered his ninety-one-year-old neighbor’s home without permission and

sexually assaulted her for nearly two hours. Abell does not dispute the depraved and heinous

nature of his actions, but rather tries to explain them away as being the product of his low

intelligence and his long-term alcohol abuse. Upon review, however, we are unconvinced by

Abell’s claim that his actions were aberrations inconsistent with his otherwise good

character. In light of the depraved and heinous nature of his actions, we conclude that the

thirty-six-year sentence imposed by the trial court is wholly appropriate.

       The judgment of the trial court is affirmed.

ROBB, C.J., and BAKER, J., concur.




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