MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Sep 04 2018, 10:39 am
court except for the purpose of establishing
                                                                               CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Blair Todd                                               Curtis T. Hill, Jr.
Winamac, Indiana                                         Attorney General of Indiana

                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

David Spohn,                                             September 4, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1026
        v.                                               Appeal from the Starke Circuit
                                                         Court
State of Indiana,                                        The Honorable Kim Hall, Judge
Appellee-Plaintiff                                       Trial Court Cause No.
                                                         75C01-1706-F5-17



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 18A-CR-1026 | September 4, 2018                  Page 1 of 8
[1]   Following a jury trial, David Spohn was convicted of domestic battery as a

      Level 6 felony. The trial court sentenced Spohn to the maximum sentence of

      two and one-half years in prison. On appeal, Spohn contends that the sentence

      is inappropriate in light of his character and the nature of the offense.


[2]   We affirm.


                                       Facts & Procedural History


[3]   Crystal and David Spohn married in 2006. They have two sons together – D.S.

      born in February 2007 and N.S. born in July 2014. M.K., Crystal’s daughter

      born in February 2004, also lived with them.


[4]   During the summer of 2015, Spohn was charged under three separate causes

      with Level 5 felony burglary and Level 6 felony theft. He entered into a plea

      agreement on April 7, 2016, in which he agreed to plead guilty to the felony

      theft charge in each case and the State dismissed the burglary charges. He was

      sentenced to three consecutive terms of thirty months executed and permitted to

      serve his sentences on work release. His subsequent request to modify his

      sentences to home detention was granted in December 2016, and he returned to

      live with Crystal and the children.


[5]   Around this same time, Crystal became aware of an affair Spohn had while on

      work release and that the affair had resulted in a pregnancy. Spohn agreed with

      Crystal that he would only communicate with this woman regarding the

      pregnancy and that the romantic relationship was over. In the early morning


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1026 | September 4, 2018   Page 2 of 8
      hours of May 30, 2017, however, Crystal discovered that the relationship had

      continued. She communicated with the other woman while Spohn slept and

      obtained a voicemail message from her as evidence of the ongoing affair.


[6]   Crystal went to bed around 2:00 a.m. and climbed in between Spohn and two-

      year-old N.S. D.S. was sleeping in a toddler bed in the same room. When

      Spohn placed his arm around her, Crystal told him that she had talked with his

      girlfriend. She then played the voicemail message for him. Spohn responded

      by pushing Crystal off the bed, which also resulted in N.S. falling to the ground.

      Crystal tried to stand up, but Spohn pushed her onto D.S.’s bed. Crystal and

      Spohn then engaged in a verbal argument, while Spohn held her by the arm.

      When she threatened to call the police, Spohn took the phone and “whipped it

      across the room.” Transcript Vol. II at 113.


[7]   M.K. eventually awoke and came out of her bedroom. She stood in the

      doorway to their bedroom and yelled for Spohn to stop. Spohn stepped toward

      M.K. and called her “a little bitch.” Id. Crystal stepped in between them and

      hit Spohn once on the side of the face. She then turned to leave with the three

      children. As she turned with N.S. in her arms, Spohn punched her in the back

      of the head. Crystal fell to the ground with N.S., and Spohn then began beating

      her with his fists about her back and ribs. The blows lasted for several minutes,

      as she stayed on top of N.S. to protect him. During the commotion, a friend

      staying the night at the home called 911.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1026 | September 4, 2018   Page 3 of 8
[8]   When Spohn stopped his attack, Crystal painfully pulled herself up off the

      ground and gathered the children. She could barely breathe due to the pain but

      managed to drive away with the children and her friend. The police arrived

      shortly after she left, and a responding officer spoke with Spohn, who had no

      visible injuries. The officer then met with Crystal a few miles down the road.

      She was visibly in pain and had injuries to her head and a significant portion of

      the left side of her torso. Crystal went to the hospital later that day and was

      diagnosed with a chipped L1 vertebra and bruised ribs. Her rib pain lasted

      several weeks, and the pain from the chipped vertebra has continued

      indefinitely. Additionally, the emotional trauma from the attack has continued

      to affect the children and Crystal.


[9]   The State charged Spohn with domestic battery causing serious bodily injury, a

      Level 5 felony. Following a jury trial, Spohn was convicted of the lesser offense

      of domestic battery causing moderate bodily injury,1 a Level 6 felony. On

      March 29, 2018, the trial court sentenced Spohn to the maximum sentence for

      his crime, two and one-half years in prison. Spohn now appeals his sentence as

      inappropriate. Additional information will be provided below as needed.


                                            Discussion & Decision




      1
       Moderate bodily injury is defined as “any impairment of physical condition that includes substantial pain.”
      Ind. Code § 35-31.5-2-204.5.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1026 | September 4, 2018                 Page 4 of 8
[10]   Article 7, section 4 of the Indiana Constitution grants our Supreme Court the

       power to review and revise criminal sentences. See Knapp v. State, 9 N.E.3d

       1274, 1292 (Ind. 2014). Pursuant to Ind. Appellate Rule 7, the Supreme Court

       authorized this court to perform the same task. Cardwell v. State, 895 N.E.2d

       1219, 1224 (Ind. 2008). Per App. R. 7(B), we may revise a sentence “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.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R. 7).

       “Sentencing review under Appellate Rule 7(B) is very deferential to the trial

       court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “Such deference

       should prevail unless overcome by compelling evidence portraying in a positive

       light the nature of the offense (such as accompanied by restraint, regard, and

       lack of brutality) and the defendant’s character (such as substantial virtuous

       traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d

       111, 122 (Ind. 2015).


[11]   The determination of whether we regard a sentence as inappropriate “turns 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.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell, 895

       N.E.2d at 1224). Moreover, “[t]he principal role of such review is to attempt to

       leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is

       not our goal in this endeavor to achieve the perceived “correct” sentence in

       each case. Knapp, 9 N.E.3d at 1292. Accordingly, “the question under


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1026 | September 4, 2018   Page 5 of 8
       Appellate Rule 7(B) is not whether another sentence is more appropriate; rather,

       the question is whether the sentence imposed is inappropriate.” King v. State,

       894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original). Further,

       Spohn bears the burden of persuading us that his sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[12]   We agree with the State that nothing about this offense or Spohn’s character

       suggests that the maximum, two-and-one-half-year sentence was inappropriate

       here. Spohn’s offense was particularly egregious. He severely beat his wife in a

       prolonged attack that went well beyond that necessary to constitute the offense

       for which he was convicted. Moreover, Spohn’s violent beating of his wife as

       she laid helpless on the ground took place in the immediate presence of their

       two young children and Crystal’s teenage daughter. In fact, Crystal was

       holding their two-year-old son N.S. when Spohn struck her in the back of the

       head, causing her and N.S. to fall to the ground. Crystal protected N.S. with

       her body as the attack continued for several minutes. When the attack finally

       ended, Crystal frantically gathered the children and fled from the house around

       3:00 in the morning, stopping to meet with police in a parking lot. Crystal

       suffered a chipped vertebra and injuries to her ribs and still had ongoing pain at

       the time of trial. Spohn’s crime also caused significant emotional trauma for

       Crystal and the children. Further, Spohn took no responsibility for his actions

       and, instead, claimed that he acted in self-defense. Even on appeal, Spohn

       argues that his crime was “partially instigated by the victim in the case.”

       Appellant’s Brief at 11. The trial court expressly rejected this argument.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1026 | September 4, 2018   Page 6 of 8
[13]   The nature of Spohn’s offense and its effect on his family says much about his

       character, as does his significant history of delinquent and criminal behavior,

       which spans four different counties. Spohn was on electronic-monitored home

       detention – serving an aggregate seven-and-one-half-year sentence for three

       counts of Level 6 felony theft – when he committed this crime. Spohn’s 2016

       convictions for felony theft under three separate cause numbers were the result

       of a plea agreement, which permitted Spohn to avoid Level 5 felony burglary

       convictions in each case and allowed him to serve his sentence on work release.

       Spohn was then granted leniency by the court when his sentences were later

       modified to be served on home detention.2 Less than six months after being

       placed on home detention, Spohn committed this crime against Crystal.


[14]   In sum, Spohn’s argument that he is not the worst of the worst is unavailing.

       His vicious attack on his wife in the presence of their children resulted in long-

       term injury to Crystal and ongoing emotional damage to the children and is

       within the class of the most serious acts of domestic battery resulting in

       moderate bodily injury. Further, this crime took place while Spohn was serving

       a lengthy sentence on home detention for three other felony convictions. The

       maximum sentence of two and one-half years is not inappropriate under the

       circumstances presented.




       2
         Spohn has received lenient treatment in other prior criminal cases, including pretrial diversion and non-
       reporting probation.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1026 | September 4, 2018                   Page 7 of 8
[15]   Judgment affirmed.


       Brown, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1026 | September 4, 2018   Page 8 of 8
