Stephen D. Booker v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Dec 23 2015, 9:01 am
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
Randy M. Fisher Gregory F. Zoeller
Leonard, Hammond, Thoma & Terrill Attorney General
Fort Wayne, Indiana
Paula J. Beller
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Stephen D. Booker, December 23, 2015
Appellant-Defendant, Court of Appeals Case No.
02A04-1505-CR-307
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull
Appellee-Plaintiff Trial Court Cause No.
02D05-1406-FB-110
Vaidik, Chief Judge.
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Case Summary
[1] Stephen D. Booker appeals his eighteen-year sentence for Class B felony rape.
He contends the trial court abused its discretion by not crediting his proffered
mitigating circumstances and that his sentence is inappropriate. Finding no
abuse of discretion and that Booker has failed to persuade us that his sentence is
inappropriate, we affirm.
Facts and Procedural History
[2] P.J. went out with her sister and two friends to celebrate her twentieth birthday
on March 23, 2013. Over the course of the evening, P.J. consumed enough
alcohol to become incapacitated. At around 3:00 a.m., P.J.’s sister helped her
get into bed and the sister stayed for about an hour before leaving P.J., asleep
and alone. Before leaving, P.J.’s sister took P.J.’s key so that she could lock the
door when she left the apartment. Unfortunately, the lock on P.J.’s apartment
only worked if the door was being pulled while the key was being turned, and
P.J.’s sister did not know that. Over the remainder of the early morning hours,
neighbors came to check on P.J. multiple times. All of the neighbors agreed
that they were unable to wake P.J.—that she was completely unresponsive.
[3] Also on March 23, 2013, forty-two-year-old Stephen D. Booker was visiting
friends who live in the same building as P.J. Booker went into P.J.’s apartment
with Nina Williams when Williams was checking on P.J. “to see if she was
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breathing.” Tr. p. 110. Booker left Williams’s apartment later in the morning,
when Williams was going to bed.
[4] After leaving Williams’s apartment, Booker entered P.J.’s apartment, uninvited.
Booker began having sexual intercourse with P.J. while she was still
incapacitated. P.J. finally awoke to find Booker having sex with her. She
immediately ordered him out of her home.
[5] The State charged Booker with two counts of Class B felony rape: Count I,
knowingly or intentionally having sexual intercourse with another person when
the other person is unaware that sexual intercourse is occurring; and Count II,
knowingly or intentionally having sexual intercourse with another person when
the other person is so mentally disabled or deficient that consent to sexual
intercourse cannot be given. The jury convicted Booker on both counts. The
trial judge ordered the conviction on Count II vacated and sentenced Booker to
eighteen years at the Indiana Department of Correction and lifetime parole on
Count I. Booker now appeals his sentence.
Discussion and Decision
[6] Booker appeals his sentence on the grounds that the trial court abused its
discretion and that the sentence is inappropriate based on the nature of the
offense and his character.
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I. Abuse of Discretion
[7] Sentencing 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), decision 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 before the court, or the reasonable,
probable, and actual deductions to be drawn therefrom. Id. A trial court may
abuse its discretion in a number of ways, including entering a sentencing
statement that omits mitigating factors that are clearly supported by the record.
Id. at 490-91. However, the “trial court is not obligated to accept the
defendant’s contentions as to what constitutes a mitigating factor[,]” nor is it
required to give the same weight to proffered mitigating factors as the defendant
does. Gross v. State, 769 N.E.2d 1136, 1140 (Ind. 2002). Booker bears the
burden of establishing “that the mitigating evidence is both significant and
clearly supported by the record.” Anglemyer, 868 N.E.2d at 493 (citing Carter v.
State, 711 N.E.2d 835, 838 (Ind. 1999)).
[8] Booker argues that the trial court abused its discretion by not finding the
following to be mitigating factors: his recent college graduation, the hardship on
his dependent children, his mental health history, and his history of substance
abuse. The record reflects that the trial court considered the proffered
mitigating factors, but did not find them significant.
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[9] First, Booker contends that the trial court erred by failing to give weight to his
recent degree from Brown Mackie College. He relies on Hineman v. State, 292
N.E.2d 618 (Ind. Ct. App. 1973), for the proposition that it is proper for the
court to consider the defendant’s school life and academic achievements.1
This Court made clear in Hineman that “[t]he trial court may in its discretion
consider [the defendant’s] school life and academic achievements before
commitment.” Id. at 624. In this case, the trial court considered Booker’s
education, but found it not to be a mitigating circumstance. Sentencing Tr. p.
22. That is within the sentencing court’s discretion.
[10] Second, Booker argues that the eighteen-year sentence will cause undue
hardship for his dependent children. “Many persons convicted of serious
crimes have one or more children and, absent special circumstances, trial courts
are not required to find that imprisonment will result in an undue hardship.”
Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999). Booker has three minor,
dependent children, and he pays $350 per month for their support. However,
two of the children are seventeen and one is sixteen. The trial court observed
that the minimum executed sentence would be six years. Even if the minimum
sentence is imposed in this case, the children will be adults by the time Booker
is released. Therefore, we see no abuse of discretion in the trial court’s decision
not to give weight to the hardship on Booker’s children. See Weaver v. State, 845
1
Hineman objected to his sentence on the ground that the “precommitment report” contained his juvenile
record and statements which characterized him as a troublemaker in high school. Hineman, 292 N.E.2d at
623.
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N.E.2d 1066, 1074 (Ind. Ct. App. 2006) (“[T]his mitigator can properly be
assigned no weight when the defendant fails to show why incarceration for a
particular term will cause more hardship than incarceration for a shorter
term.”), trans. denied.
[11] Next, Booker contends that the trial court should have considered his mental
health history. This Court considers several factors in determining whether
mental illness should be given mitigating weight. Those factors include “the
extent of the inability to control behavior, the overall limit on function, the
duration of the illness, and the nexus between the illness and the crime.”
Covington v. State, 842 N.E.2d 345, 349 (Ind. 2006). Here, Booker has shown no
connection between his self-reported “Borderline Anxiety Disorder” and raping
P.J. Appellant’s App. p. 98. The trial judge properly declined to consider it.
[12] Finally, Booker argues that the trial court should have considered his history of
substance abuse to be a mitigating factor. We recognize that a history of
substance abuse may be a mitigating circumstance. Field v. State, 843 N.E.2d
1008, 1012 (Ind. Ct. App. 2006), trans. denied. However, “when a defendant is
aware of a substance abuse problem but has not taken appropriate steps to treat
it, the trial court does not abuse its discretion by rejecting the addiction as a
mitigating circumstance.” Hape v. State, 903 N.E.2d 977, 1002 (Ind. Ct. App.
2009), trans. denied. Given Booker’s numerous convictions for crimes related to
substance abuse, and his prior attempts at treatment, the trial court could have
reasonably concluded that Booker was aware of his substance abuse and failed
to take appropriate measures to treat it. Therefore, we see no abuse of
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discretion in the trial court’s decision not to give mitigating weight to his
addictions.
[13] Booker has not proven that his proffered mitigating circumstances are
significant and clearly supported by the record. Therefore, we conclude that the
trial court did not abuse its discretion.
II. Inappropriate Sentence
[14] Next Booker argues that his sentence is inappropriate given the nature of the
offense and his character, and he asks us to revise his sentence under the
authority of Indiana Appellate Rule 7(B). According to Indiana Code section
35-50-2-5, a person who commits a Class B felony (for crimes committed prior
to July 1, 2014) is subject to a minimum sentence of six years, a maximum of
twenty years, and an advisory term of ten years. Here, Booker received a
sentence of eighteen years.
[15] Our appellate rules authorize revision of 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.” Ind.
Appellate Rule 7(B). “Our review under Appellate Rule 7(B) is extremely
deferential to the trial court.” Dixon v. State, 825 N.E.2d 1269, 1271 (Ind. Ct.
App. 2005), trans. denied. “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
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character (such as substantial virtuous traits or persistent examples of good
character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[16] Booker argues that his proffered mitigating factors—his recent graduation, his
ability to provide for his minor children, his mental health history, and his
history of substance abuse—combined with the testimony of his witnesses that
he is a good father, son, and neighbor demonstrate good character. However,
our review of the record also reveals that Booker’s criminal history spans
twenty-seven years and includes convictions for ten misdemeanors and one
felony. No prior attempts at rehabilitation have succeeded.
[17] Further, Booker makes no argument with respect to the nature of the crime
except to say that he “is not the most culpable offender that the Indiana Court
of Appeals has scrutinized under these statutes.” Appellant’s Br. p. 14. While
that may be true, it does not mitigate the fact that Booker entered P.J.’s
apartment while she was asleep and unresponsive—which he knew because he
saw her neighbor checking on her to be sure she was still breathing—and raped
her.
[18] We find that sentence revision is not supported by the nature of the offense, or
by the character of the offender. Booker has not presented sufficiently
compelling evidence to override the decision of the trial judge.
[19] We affirm the decision of the trial court.
Bailey, J., and Crone, J., concur.
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