Thomas Lee Campbell v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Aug 16 2018, 9:19 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Carlos I. Carrillo Curtis T. Hill, Jr.
Greenwood, Indiana Attorney General of Indiana
Lee M. Stoy, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Thomas Lee Campbell, August 16, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-598
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Randy J. Williams,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79D01-1705-F5-67
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Thomas Lee Campbell (Campbell), appeals his
conviction for domestic battery by means of a deadly weapon, a Level 5 felony,
Ind. Code § 35-42-2-1.3
[2] We affirm.
ISSUES
[3] Campbell presents three issues on appeal, which we restate as:
(1) Whether the trial court’s merger of the charges Campbell was found
guilty of with his battery conviction was adequate to cure any potential
double jeopardy concerns;
(2) Whether the State presented sufficient evidence beyond a reasonable
doubt to support Campbell’s conviction; and
(3) Whether Campbell’s sentence is inappropriate in light of the nature of the
offense and his character.
FACTS AND PROCEDURAL HISTORY
[4] On May 20, 2017, after going to the grocery store and the laundromat, Jill
Vestal (Vestal) returned to the home that she shared with her then-boyfriend of
two years, Campbell. They had been living together for six months in
Lafayette, Indiana. When Vestal arrived, Campbell was drunk, and a few
hours later, he “passed out.” (Transcript p. 8). While Campbell was passed
out, Vestal changed the channel on the television. Campbell woke up and
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began “screaming” about changing the TV channel. (Tr. p. 9). Vestal
eventually walked to the kitchen, and was followed by Campbell, who grabbed
a knife with a wooden handle and jagged edge. As Campbell swung the knife
at Vestal, she managed to jump back, only sustaining a small puncture wound
and a scratch on her chest. “[H]e [was] yelling and swearing when he was
chasing [Vestal] around the residence with the knife.” (Tr. p. 27). Vestal took
her car keys and cell phone and ran out of the house. Once inside her car, she
called 911.
[5] Lafayette Police Officer Blake Barker-Switzer (Officer Barker-Switzer)
responded to the 911 call. After arresting Campbell, Officer Barker-Switzer
conducted a protective sweep of the house and “[a]s [he] was walking through
the kitchen [he] [saw] a wooden handled serrated kitchen knife sitting on the
stove.” (Tr. p. 32). “When [he] examined the knife closer, [he] found it
covered in grease with the exception of the very, very, very, very tip of the
blade.” (Tr. p. 36). After close examination of Vestal’s injury, Officer Barker-
Switzer determined it was the result of a puncture wound.
[6] On May 25, 2017, the State charged Campbell with Count I, domestic battery
by means of a deadly weapon, a Level 5 felony, I.C. § 35-42-2-1.3; Count II,
battery by means of a deadly weapon, a Level 5 felony, I.C. § 35-42-2-1(c);
Count III, intimidation, a Level 5 felony, I.C. § 35-45-2-1(a); Count IV,
criminal recklessness, a Level 6 felony, I.C. § 35-42-2-2; and Count V, domestic
battery, a Level 6 felony, I.C. § 35-42-2-1.3(a). On January 10, 2018, the trial
court conducted a bench trial. During the trial, Campbell testified that he did
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not touch Vestal but that she had scratched herself repeatedly on the chest while
she sat in her truck. At the close of the evidence, the trial court found Campbell
guilty on all Counts.
[7] On February 8, 2018, the trial court conducted a sentencing hearing during
which the trial court entered judgment and conviction as to the Level 5
domestic battery by means of a deadly weapon and merged the other guilty
Counts into that conviction. The trial court sentenced Campbell to five years at
the Department of Correction with one year executed, two years suspended to
community corrections, and one year suspended to probation.
[8] Campbell now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Merger of Counts
[9] Campbell first contends that the trial court should have vacated Campbell’s
convictions for Counts II through V to remedy any potential double jeopardy
concerns. A double jeopardy violation occurs when judgments of conviction
are entered and cannot be remedied by the practical effect of concurrent
sentences or by merger after a conviction has been entered. Gregory v. State, 885
N.E.2d 697, 703 (Ind. Ct. App. 2008), trans. denied. Thus, “[a] trial; court’s act
of merging, without also vacating the conviction is not sufficient to cure the
double jeopardy violation.” Id. However, “a merged offense for which a
defendant is found guilty, but on which there is neither a judgment nor a
sentence, is unproblematic as far as double jeopardy is concerned. Green v.
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State, 856 N.E.2d 703, 704 (Ind. 2006); See also Kovats v. State, 982 N.E.2d 409,
414, 415 (Ind. Ct. App. 2013) (If a trial court does not formally enter a
judgment of conviction on a jury verdict of guilty, then there is no requirement
that the trial court vacate the conviction, and merger is appropriate to cure any
double jeopardy issues).
[10] At the close of the bench trial, the trial court found Campbell guilty as charged.
During the sentencing hearing and in its sentencing order, the trial court
sentenced Campbell for Count I only, with all other Counts merging into Count
I. 1 There is no evidence before us that the trial court entered judgment of
conviction for Counts II through V. Accordingly, merger was adequate to
remedy any potential double jeopardy concerns. See Green, 856 N.E.2d at 704.
II. Sufficiency of the Evidence
[11] Next, Campbell contends that the State failed to present sufficient evidence
beyond a reasonable doubt to support his conviction for domestic battery by
means of a deadly weapon. When reviewing the sufficiency of the evidence to
support a conviction, appellate courts must consider only the probative
evidence and reasonable inferences supporting the judgment. Drane v. State, 867
N.E.2d 144, 146-47 (Ind. 2007). It is the fact-finder’s role, not that of appellate
courts, to assess witness credibility and weigh the evidence to determine
1
During the sentencing hearing, the trial court explicitly noted “so we will show Judgment of Conviction
entered then as to Count 1 Domestic Battery with a Deadly Weapon, a Level 5 Felony, as the parties agree
that all of the remaining Counts merge into that Count.” (Tr. p. 71).
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whether it is sufficient to support a conviction. Id. To preserve this structure,
when appellate courts are confronted with conflicting evidence, they must
consider it most favorably to the trial court’s ruling. Id. Appellate courts affirm
the conviction unless no reasonable fact-finder could find the elements of the
crime proven beyond a reasonable doubt. Id. It is therefore not necessary that
the evidence overcome every reasonable hypothesis of innocence. Id. The
evidence is sufficient if an inference may reasonably be drawn from it to support
the judgment. See id. Upon review, appellate courts do not reweigh the
evidence or assess the credibility of the witnesses. Stewart v. State, 768 N.E.2d
433, 435 (Ind. 2002).
[12] To convict Campbell of a Level 5 felony domestic battery by means of a deadly
weapon, the State was required to establish beyond a reasonable doubt that
Campbell knowingly or intentionally touched a family or household member
with a deadly weapon in a rude, angry or insolent manner. See I.C. § 35-42-2-
1.3(a)(1) & (c)(2). Not contesting any specific element of the charge, Campbell
focuses on the discrepancies between the witnesses’ testimonies. Specifically,
he asserts that Vestal, Officer Barker-Switzer, and Campbell all presented
different statements about the nature of the injury. Vestal claimed that she was
cut in a bottom to top motion, whereas Officer Barker-Switzer believed it was a
top to bottom angle, and Campbell testified that he had observed Vestal
scratching herself with her fingernails. In other words, Campbell’s argument
amounts to a request to reweigh the evidence and judge the credibility of the
witnesses. “It is for the trier of fact to resolve conflicts in the evidence and to
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decide which witnesses to believe or disbelieve.” Kilpatrick v. State, 746
N.E.2d 52, 61 (Ind. 2001).
[13] Moreover, considering the evidence most favorable to the judgment, the
evidence is sufficient to sustain Campbell’s conviction. Vestal testified that after
changing the TV channel, Campbell started screaming at her. After the
followed her into the kitchen, he picked up a knife, “swung it at [her] and [she]
jumped back.” (Tr. p. 24). By moving out of the way, Vestal only sustained a
small puncture wound on her chest. Officer Barker-Switzer affirmed the
presence of the knife in the kitchen and Vestal’s puncture wound. Accordingly,
we affirm Campbell’s conviction for battery by means of a deadly weapon.
III. Appropriateness of Sentence
[14] Next, Campbell complains that the sentence imposed is inappropriate. This
court has the authority to 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.” See Ind. Appellate Rule 7(B). “The 7(B) appropriateness inquiry is a
discretionary exercise of the appellate court’s judgment, not unlike the trial
court’s discretionary sentencing determination.” Knapp v. State, 9 N.E.3d 1274,
1291-92 (Ind. 2014), cert. denied, 135 S.Ct. 978 (2015). “On appeal, though, we
conduct that review with substantial deference and give due consideration to
the trial court’s decision—since the principal role of our review is to attempt to
leaven the outliers, and not to achieve a perceived correct sentence.” Id. at
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1292 (internal quotation marks omitted). Accordingly, the question under
Appellate Rule 7(B) is not whether another sentence is more appropriate;
rather, the question is whether the sentence imposed is inappropriate. Conley v.
State, 972 N.E.2d 864, 876 (Ind. 2012) (internal quotation marks omitted). The
defendant has the burden of persuading us that his sentence is inappropriate.
King, 894 N.E.2d at 267.
[15] “‘[R]egarding the nature of the offense, the advisory sentence is the starting
point the Legislature has selected as an appropriate sentence for the crime
committed.’” Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016) (quoting
Anglemyer, 868 N.E.2d at 494). The advisory sentence of a Level 5 felony is
imprisonment “for a fixed term of between one (1) months and six (6) years,
with the advisory sentence being three (3) years.” I.C. § 35-50-2-6(b). The trial
court sentenced Campbell to five years in the Department of Correction with
one year executed, two years suspended to community corrections, and one
years suspended to probation.
[16] In the heat of a trivial domestic argument about a TV channel, Campbell
escalated the discussion by picking up a weapon and using it. Although
Campbell asserts that “Vestal’s injury did not require hospitalization and/or
treatment,” the only reason the injuries were rather minimal was because Vestal
was able to jump back when Campbell thrust the knife at her. (Appellant’s Br.
p. 13). Accordingly, the extent of Vestal’s injury was not a result of Campbell
showing “restraint, regard, and lack of brutality.” Stephenson v. State, 29 N.E.3d
111, 122 (Ind. 2015).
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[17] When considering the character of the offender prong of our inquiry, one
relevant consideration is the defendant’s criminal history. Rutherford v. State,
866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The significance of a defendant’s
prior criminal history will vary “based on the gravity, nature and number of
prior offense as they relate to the current offense.” Smith v. State, 889 N.E.2d
261, 263 (Ind. 2008). Campbell’ criminal history spans more than forty years.
During this time, Campbell has collected twenty misdemeanor convictions, and
fourteen felony convictions. He was convicted of domestic battery in 2000.
Even though there is a fourteen-year gap between the instant offense and the
commission of Campbell’s last offense, Campbell was not leading a law abiding
life as he admitted to smoking marijuana twice per week between the ages of
sixteen and fifty-eight. As pointed out by the trial court during sentencing,
“when you are using and possessing illegal drugs during this entire period of
time, [] it negates the position that it is a good and lawful behavior for a good
period of time.” In order to support his addiction habit, he started writing bad
checks; however, it should be noted that he has paid restitution on every bad
check since then. Campbell had six petitions to revoke his bond filed against
him and, while on bond in the current case, he committed another crime.
Despite a guilty finding after a bench trial, Campbell continued to blame Vestal
and thinks “she is all about herself.” (Appellant’s App. Vol. III, p. 18).
[18] In light on the evidence before us, Campbell has not met his burden of
persuading this court that the nature of the offense and his character make his
sentence inappropriate. We affirm the trial court’s sentence.
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CONCLUSION
[19] Based on the foregoing, we hold that (1) merger of the charges Campbell was
found guilty of with his battery conviction was adequate to cure any potential
double jeopardy concerns; (2) the State presented sufficient evidence beyond a
reasonable doubt to support Campbell’s conviction; and (3) Campbell’s
sentence is not inappropriate in light of the nature of the offense and his
character
Affirmed.
Vaidik, C. J. and Kirsch, J. concur
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