Kevin Axton v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Jun 09 2015, 9:02 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Tia R. Brewer Gregory F. Zoeller
Grant County Public Defender Attorney General of Indiana
Marion, Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kevin Axton, June 9, 2015
Appellant-Defendant, Court of Appeals Case No.
27A04-1404-CR-184
v.
Appeal from the Grant Superior
State of Indiana, Court
The Honorable Dana J. Kenworthy,
Appellee-Plaintiff, Judge
Cause No. 27D02-1307-FB-58
Robb, Judge.
Case Summary and Issues
[1] Following a jury trial, Kevin Axton was convicted of criminal confinement, a
Class C felony, for which he was sentenced to eight years; domestic battery, a
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Class A misdemeanor, for which he was sentenced to one year; intimidation, a
Class D felony, for which he was sentenced to three years; and criminal deviate
conduct, a Class B felony, for which he was sentenced to twenty years. The
trial court ordered his sentences to be served concurrently, for a total sentence
of twenty years, all executed. Axton appeals his sentence, raising two issues for
our review: 1) whether the trial court abused its discretion in sentencing him,
and 2) whether his sentence is inappropriate in light of the nature of his offenses
and his character. Concluding the trial court did not abuse its discretion and
Axton’s sentence is not inappropriate, we affirm.
Facts and Procedural History
[2] Axton and his wife, Tammy, returned to the home they sometimes shared early
in the evening of July 15, 2013, after smoking crack cocaine at a friend’s house.
Axton had also been drinking alcohol throughout the day and continued to do
so once they arrived home. Axton became angry when he dialed a contact
from Tammy’s cellphone, thinking he would be calling their friend so he could
ask him to bring more beer to the house. Instead, he reached a different man
with whom he then accused Tammy of having an affair. Axton spent the next
several hours slapping, hitting, and punching Tammy about the head, arms,
legs, and torso. He broke her nose and left bruises all over her body. He made
her remove her clothes so she could not run away, and he forced her to perform
oral sex on him. When that was ultimately unsuccessful because Tammy could
not breathe through her broken nose, he pushed her down onto the bed and
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engaged in sexual intercourse with her. He repeatedly refused to allow her to
leave the house for fear she would call the police. When Axton passed out the
next morning, Tammy dressed and fled the house, seeking help at a nearby
credit union. Employees there noted her swollen and bloody face, bruises on
her body, and her panicked demeanor. Police were called, and Tammy was
taken to the hospital by ambulance.
[3] The State charged Axton with criminal confinement, domestic battery,
intimidation, and criminal deviate conduct. A jury found him guilty of all
charges. At the sentencing hearing, the trial court stated:
. . . I am going to find the following aggravating factors. First of all,
the criminal history as set forth on pages four through eight of the
Presentence Investigation Report, that includes O.W.I. from 1985,
Possession of Marijuana from 1994, Operating with a BAC of .10 or
More in 1996, Domestic Battery, 2006, Intimidation, 2006, Resisting
Law Enforcement, 2006, Public Intox., 2007, Intimidation, 2007,
Invasion of Privacy, 2008, Trespass and Criminal Mischief, 2008,
Intimidation and Trespass, 2007, Battery, 2010, Invasion of Privacy,
2010, Trespass and Resisting Law Enforcement, 2011, Resisting Law
Enforcement and Public Intox., 2011, Public Intox., 2012, followed by
this case in 2013. I also note multiple probation violations throughout
that time period. The criminal history is [sic] this case is an extremely
strong aggravating factor. I also find as an aggravator that the harm or
injury was greater than the elements necessary to prove the offense.
Miss Axton did suffer a broken nose which is greater than the elements
necessary to prove the Domestic Battery charge. That, I will find is a
moderate aggravating factor. In this case I find no mitigating factors.
The aggravators do outweigh the mitigators. I also note that the
character of this defendant indicates that he is not a good candidate for
probation based upon his disregard of the court’s No-Contact Order.
His disregard for the rules of probation in the past, and his failure to
follow through treatment programs which were offer[ed] to him in the
past.
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Transcript at 307-09. The trial court sentenced him to eight years executed for
criminal confinement, one year executed for domestic battery, three years
executed for intimidation, and twenty years executed for criminal deviate
conduct, all to be served concurrently for an aggregate sentence of twenty years.
Axton now appeals his sentence.
Discussion and Decision
I. Abuse of Discretion
[4] “[S]entencing decisions rest within the sound discretion of the trial court and
are reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868
N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An
abuse of discretion occurs if the decision is clearly against the logic and effect of
the facts and circumstances. Id. The trial court may abuse its discretion in
sentencing by:
(1) failing to enter a sentencing statement, (2) entering a sentencing
statement that explains reasons for imposing the sentence but the
record does not support the reasons, (3) the sentencing statement omits
reasons that are clearly supported by the record and advanced for
consideration, or (4) the reasons given in the sentencing statement are
improper as a matter of law.
Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012) (citing Anglemyer, 868
N.E.2d at 490-91).
[5] Axton contends the trial court abused its discretion in sentencing him by
finding aggravating circumstances which were not supported by the record and
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were improper as a matter of law. Specifically, the trial court found as an
aggravating circumstance the fact that the harm caused to Tammy was greater
than that necessary to prove the elements of domestic battery. Axton
challenges this as unsupported by the record. Further, the trial court stated that
“[b]ased upon his character, attitudes, and history . . . [Axton] is not a good
candidate for probation.” Appendix of Appellant’s Brief at 12;1 see also Tr. at
308-09. Axton claims the trial court was using this as an aggravating
circumstance, which would be improper as a matter of law because the fact that
a person is likely to respond affirmatively to probation is a statutory mitigating
circumstance. See Ind. Code § 35-38-1-7.1(b)(7). He also claims this is
improper because it is a reflection of his criminal history, which was separately
identified as an aggravating circumstance.
[6] Our supreme court has held that the nature and circumstances of a crime can be
a valid aggravating factor. McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001).
However, a trial court must give more than a generalized reference to the
nature and circumstances of the crime. See Smith v. State, 872 N.E.2d 169, 178-
79 (Ind. Ct. App. 2007), trans. denied. The trial court may assign aggravating
weight to the harm, injury, loss, or damage suffered by the victim if such harm
was significant and greater than the elements necessary to prove the
commission of the offense. Filice v. State, 886 N.E.2d 24, 39 (Ind. Ct. App.
1
Appellant’s Appendix includes several pages from the transcript. For several years now, Indiana Appellate
Rule 50(F) has provided that no portion of the transcript should be reproduced in the appendix because the
transcript is transmitted to the court on appeal by the trial court clerk.
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2008), trans. denied. The trial court here specifically referenced the harm caused
to Tammy during the domestic battery, which requires “bodily injury.” Ind.
Code § 35-42-2-1.3(a). “‘Bodily injury’ means any impairment of physical
condition, including physical pain.” Ind. Code § 35-31.5-2-29. Here, Tammy
testified that she experienced not just physical pain, but also a broken nose,
sprained ankle, and bruising all over her body. And not only did Axton inflict
bodily injury in excess of pain, but he did so over a prolonged period. Tammy
testified that they arrived home at approximately four o’clock in the evening,
and she was not able to leave the house until seven o’clock the next morning,
with Axton slapping and hitting her much of that time. We hold this
aggravating circumstance is clearly supported by the record.
[7] As for the trial court’s statement that Axton was not a good candidate for
probation, we do not believe the trial court improperly “misused” a statutory
mitigating circumstance as an aggravating circumstance, as Axton asserts. See
Brief of Appellant at 7. The trial court had already announced the aggravating
and mitigating circumstances and its weighing of them before it made this
statement. The trial court’s reference to whether probation was a viable option
was merely an explanation as to why the trial court was ordering the sentence
to be executed in its entirety. The trial court did not use this as an aggravating
circumstance at all, let alone improperly.
[8] In sum, the trial court did not abuse its discretion in its identification of
aggravating circumstances when sentencing Axton.
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II. Inappropriate Sentence
[9] Axton also contends his sentence is inappropriate in light of the nature of his
offenses and his character. Indiana Appellate Rule 7(B) gives appellate courts
the authority to revise a defendant’s 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.” The principal
role of Appellate Rule 7(B) review is to attempt to leaven the outliers. Chambers
v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). “[T]he question . . . 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). “[W]hether we regard a sentence as
appropriate at the end of the day 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.” Cardwell v. State, 895 N.E.2d
1219, 1224 (Ind. 2008). The appellant has the burden of persuading us that his
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[10] With regard to the “nature of the offense” portion of our review, the advisory
sentence is the starting point that the legislature has selected as an appropriate
sentence for the crime committed. Gervasio v. State, 874 N.E.2d 1003, 1005
(Ind. Ct. App. 2007). Because Axton’s sentences were ordered to be served
concurrently and because we consider the aggregate sentence, see Gleason v.
State, 965 N.E.2d 702, 712 (Ind. Ct. App. 2012), we focus on the sentence for
criminal deviate conduct, the lengthiest sentence imposed. The statutory
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sentencing range for a Class B felony is six to twenty years with an advisory
sentence of ten years. Ind. Code § 35-50-2-5(a). The trial court imposed the
maximum sentence of twenty years. As noted above, Axton continuously
abused his victim over a period exceeding twelve hours, committing multiple
offenses against her and causing serious injury. We cannot say his twenty-year
sentence is inappropriate in light of the nature of his offenses.
[11] The “character of the offender” analysis involves evaluation of the relevant
aggravating and mitigating circumstances and other general sentencing
considerations. Clara v. State, 899 N.E.2d 733, 736 (Ind. Ct. App. 2009).
Although this is Axton’s first felony conviction, he has a lengthy criminal
record, including former domestic battery and intimidation convictions. Many
of his offenses are related to his use and abuse of alcohol, which also played a
role in these offenses, yet Axton has never completed substance abuse treatment
and reported to the probation department that he did not think he had a
problem with alcohol. He has also never been committed to the Department of
Correction, instead being placed in county jails or on probation. But he has
violated probation on numerous occasions and failed to follow through on
rehabilitation programs offered to him. In light of Axton’s criminal history—
both the number of his offenses and his response to sentencing leniency—and
his alcohol abuse, we cannot say his twenty-year executed sentence is
inappropriate in light of the nature of his character.
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Conclusion
[12] The trial court did not abuse its discretion in sentencing Axton, and he has not
persuaded us that his twenty-year sentence is inappropriate in light of the nature
of his offenses or his character. We therefore affirm Axton’s sentence.
[13] Affirmed.
May, J., and Mathias, J., concur.
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