                                                                              FILED
                                                                      Mar 04 2020, 6:35 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Kristin A. Mulholland                                      Curtis T. Hill, Jr.
      Crown Point, Indiana                                       Attorney General of Indiana

                                                                 Courtney Staton
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Rogerick Demar Denham,                                     March 4, 2020
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 19A-CR-2164
              v.                                                 Appeal from the Lake Superior
                                                                 Court
      State of Indiana,                                          The Honorable Diane R. Boswell,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause No.
                                                                 45G03-1705-F1-5



      Altice, Judge.


                                              Case Summary
[1]   Rogerick Demar Denham appeals the twenty-nine-year aggregate sentence that

      was imposed following his conviction for aggravated battery, a Level 3 felony,

      and the habitual offender enhancement. Denham claims that the sentence was

      Court of Appeals of Indiana | Opinion 19A-CR-2164 | March 4, 2020                           Page 1 of 9
      inappropriate in accordance with Indiana Appellate Rule 7(B) because the trial

      court failed to properly consider his untreated mental illness, his cooperation

      with the State in obtaining the conviction of a fellow inmate, and his remorse

      for committing the offenses, which are factors that Denham claims reflect

      positively on his character.


[2]   We affirm.


                                  Facts and Procedural History
[3]   A.D. and Denham were married and living together. On April 7, 2017, A.D.

      told Denham that she did not think their marriage was working. In response,

      Denham began to repeatedly stab A.D. in her back and legs with a pocketknife.

      At some point, Denham left the room and A.D. called the police. When

      Denham returned, he noticed that A.D. had moved her cell phone. While

      Denham was searching for the phone, A.D. tried unsuccessfully to grab the

      knife away from him. Denham started swinging the knife, sliced A.D.’s hands,

      and continued to stab A.D. “all over her body.” Appendix Vol. II at 57.


[4]   When the police officers arrived, they saw Denham fleeing the residence. The

      officers entered the house and heard A.D. crying out in pain and saw that she

      was covered in an “extreme” amount of blood. Id. Although barely able to

      speak, A.D. told the officers that her husband had tried to kill her. A.D.

      sustained over twenty-five wounds including cuts to her left hand that required

      nearly forty stitches and reconstructive surgery.



      Court of Appeals of Indiana | Opinion 19A-CR-2164 | March 4, 2020         Page 2 of 9
[5]   Denham was subsequently arrested and charged with attempted murder,

      aggravated battery, domestic battery by means of a deadly weapon, and

      domestic battery resulting in serious bodily injury. The State also alleged that

      Denham was an habitual offender. Denham and the State negotiated a plea

      agreement on July 15, 2019, whereby Denham agreed to plead guilty to

      aggravated battery as a Level 3 felony and to being an habitual offender. The

      remaining charges were dismissed, along with three other unrelated charges.


[6]   The parties agreed to argue the sentence to the trial court with a cap of fourteen

      years on the habitual offender count. The trial court accepted the plea

      agreement, and A.D. provided a victim impact statement at the August 15,

      2019 sentencing hearing. A.D. explained that Denham had mocked and

      ridiculed her during the episode, telling her that she was “going to die” and that

      there was nothing she could do to stop him. Transcript Vol. II at 26. A.D. stated

      that she had suffered “physically, mentally, financially, [and] emotionally”

      from the attack and that she was “damaged.” Id. at 29.


[7]   The trial court sentenced Denham to fifteen years of incarceration for

      aggravated battery and to fourteen years on the habitual offender count, for an

      aggregate sentence of twenty-nine years. Denham now appeals.


                                      Discussion and Decision
                                          I. Standard of Review

[8]   In accordance with App. R. 7(B), we “may revise a sentence authorized by

      statute if, after due consideration of the trial court’s decision, the [c]ourt finds

      Court of Appeals of Indiana | Opinion 19A-CR-2164 | March 4, 2020             Page 3 of 9
       that the sentence is inappropriate in light of the nature of the offense and the

       character of the offender.” “The principal role of a Rule 7(B) review ‘should be

       to attempt to leaven the outliers . . . but not to achieve a perceived “correct”

       result in each case.’” Dilts v. State, 80 N.E.3d 182, 188 (Ind. Ct. App. 2017)

       (quoting Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)), trans. denied.


[9]    We independently examine the nature of Denham’s offense and his character

       under App. R. 7(B) with substantial deference to the trial court’s sentence.

       Satterfield v, State, 33 N.E.3d 344, 355 (Ind. 2015). “In conducting our review,

       we do not look to see whether the defendant’s sentence is appropriate or if

       another sentence might be more appropriate; rather, the test is whether the

       sentence is ‘inappropriate.’” Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App.

       2013), trans. denied. Whether a sentence is inappropriate ultimately depends

       upon “the culpability of the defendant, the severity of the crime, the damage

       done to others, and a myriad of other factors that come to light in a given case.”

       Dilts, 80 N.E.3d at 188-89. Denham bears the burden of persuading us that his

       aggregate twenty-nine-year sentence is inappropriate in light of the nature of the

       offense and his character. Id. at 188.


[10]   We note that the “advisory sentence is the starting point the legislature has

       selected as an appropriate sentence for the crime committed.” Connor v. State,

       58 N.E.3d 215, 220 (Ind. Ct. App. 2016). The sentencing range for Level 3

       felony aggravated battery is between three and sixteen years, with an advisory

       sentence of nine years. Ind. Code. § 35-50-2-5(b). The sentencing range for the



       Court of Appeals of Indiana | Opinion 19A-CR-2164 | March 4, 2020          Page 4 of 9
       habitual offender enhancement is between six and twenty years. I.C. § 35-50-2-

       8(i)(1).


                                         II. Sentencing Claims
                                           A. Nature of the Offense

[11]   We initially observe that Denham does not advance an argument that his

       sentence was inappropriate under the “nature of the offense” prong of App. R.

       7(B). In at least one instance, this court has determined that a defendant on

       appeal must challenge the appropriateness of a criminal sentence under both the

       character of the offender and the nature of the offense aspects of App. R. 7(B),

       or the issue may be waived. Specifically, in Williams v. State, 891 N.E.2d 621

       (Ind. Ct. App. 2008), the defendant failed to present a cogent argument that his

       sentence was inappropriate in light of his character. Although it was

       determined that the defendant arguably waived his challenge as to the

       inappropriateness of his sentence, we nonetheless exercised our authority to

       review the sentence. Id. at 633. In a more recent case, it was determined that

       this type of waiver does not apply to App. R. 7(B) sentence review. In Connor,

       the defendant challenged the appropriateness of his sentence only with regard to

       his character. In summarizing sentence review under both prongs of App. R.

       7(B), the Connor court determined that there is no requirement that an appellant

       must bear the burden of establishing both prongs of the inquiry under the rule.

       More particularly, it was determined:


               [A]lthough the rule does state that we may revise a sentence we
               find to be inappropriate ‘in light of the nature of the offense and

       Court of Appeals of Indiana | Opinion 19A-CR-2164 | March 4, 2020             Page 5 of 9
               the character of the offender,’ . . . we view that as a statement
               that we as the reviewing court must consider both of those prongs
               in our assessment, and not as a requirement that the defendant
               must necessarily prove each of those prongs render his sentence
               inappropriate . . . . In short, 7(B) review is a holistic approach,
               focusing on the forest . . . rather than the trees. . . .


       58 N.E.3d at 218-19 (emphases in original) (internal citations omitted). We

       adhere to the rationale espoused in Connor and review Denham’s sentence

       without finding that his argument only as to the “character of the offender”

       prong in App. R. 7(B) resulted in waiver.


[12]   The evidence in this case establishes that the crime was incredibly violent.

       Denham stabbed A.D. more than twenty-five times, told her that she was going

       to die, and mocked her for fearing for her life. When A.D. attempted to grab

       the pocketknife from Denham’s hand, the tendons in her left hand were

       severed. Denham continued to stab her “all over” while whispering, “I’m

       going to kill you, b***h.” Transcript Vol. II at 28. Denham then fled and left

       A.D. to suffer from the multiple wounds that he had inflicted.


[13]   When the police arrived, the officers saw that A.D. was covered in blood.

       Although barely able to speak, A.D. related to the officers that her husband had

       tried to kill her. A.D. had to be resuscitated twice due to the severity of her

       injuries and believed that she lived through the ordeal only “by the grace of

       God.” Transcript Vol. II at 29. A.D. required multiple stitches and surgery as a

       result of her wounds. The nature of this offense calls for nothing less than an

       aggravated sentence.

       Court of Appeals of Indiana | Opinion 19A-CR-2164 | March 4, 2020             Page 6 of 9
                                         B. Character of the Offender

[14]   Denham contends that the sentence was inappropriate in light of his character.

       Specifically, Denham asserts that his mother’s testimony at the sentencing

       hearing regarding his untreated mental illness, his cooperation with law

       enforcement, his strides to improve himself, and his remorse, all reflect

       positively on his character and warranted a lesser sentence.


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

       defendant’s criminal history.” Johnson v. State, 986 N.E.2d 852 (Ind. Ct. App.

       2013) (citing Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007)).

       “The significance of a criminal history in assessing a defendant’s character and

       an appropriate sentence varies based on the gravity, nature, and number of

       prior offenses in relation to the current offense.” Rutherford, 866 N.E.2d at 875.


[16]   Denham’s criminal history reflects that he is a repeat and violent offender. At

       the time of sentencing, Denham was thirty-four years old and had already

       accumulated one juvenile adjudication, three misdemeanor convictions, and

       four felony convictions. Significantly, Denham had been convicted of Class A

       felony voluntary manslaughter with a deadly weapon in 2005. As a result of

       that conviction, Denham was sentenced to the Indiana Department of

       Correction for twenty years. Following his release from incarceration, he

       continued to commit violent crimes. In October 2016, Denham was convicted

       of Level 6 felony domestic battery for battering A.D.




       Court of Appeals of Indiana | Opinion 19A-CR-2164 | March 4, 2020           Page 7 of 9
[17]   In addition to his prior offenses, Defendant was out on bond in three separate

       cause numbers when he committed the instant offense. Denham was also

       serving a probationary sentence from Hendricks County for residential

       burglary. The evidence also showed that Denham had been a member of a

       violent gang until he was twenty-five years old. The gravity, nature, and

       number of prior violent offenses in Denham’s criminal history, along with his

       gang involvement, reflect poorly on his character.


[18]   Nonetheless, Denham asserts that he is “working to improve himself” because

       he had participated in a life skills program while incarcerated. Appellant’s Brief

       at 10.    Denham’s completion of a single program of that nature does not

       warrant a lesser sentence. Similarly, Denham’s willingness to act as a State’s

       witness against a fellow inmate does not begin to excuse the fact that he brutally

       stabbed his wife more than twenty-five times.



[19]   Denham also claims that his sentence must be revised because his “previously

       untreated mental illness [was not] taken into account when assessing his

       character.” Id. Although Denham’s mother testified that her son had been

       diagnosed with bipolar disorder when he was younger, there is nothing in the

       record other than her testimony to support that claim. Moreover, Denham did

       not present evidence establishing that his mental illness had a nexus to his

       commission of this aggravated battery. See Steinberg v. State, 941 N.E.2d 515,

       524 (Ind. Ct. App. 2011) (stating that for mental illness to be a significant

       mitigating factor, “there must be a nexus” between the mental illness and the


       Court of Appeals of Indiana | Opinion 19A-CR-2164 | March 4, 2020          Page 8 of 9
       crimes at issue), trans. denied. Even so, the trial court did find that Denham’s

       mental health was a somewhat mitigating factor before pronouncing sentence.


[20]   Finally, Defendant argues that his remorse for his actions reflects positively on

       his character. Although Denham expressed some remorse for his actions, he

       attempted to minimize his culpability by relying on his anxiety and depression,

       his embarrassment from working at McDonalds, and the fear of losing his

       relationship with his wife.


[21]   In sum, Denham has failed to show that his twenty-nine-year sentence is

       inappropriate.


[22]   Judgment affirmed.


       Robb, J. and Bradford, C.J., concur.




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