Tommy Orlando Townsend, Sr. v. State of Indiana

Nov 05 2015, 8:20 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr. Gregory F. Zoeller
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tommy Orlando Townsend, Sr., November 5, 2015
Appellant-Defendant, Court of Appeals Case No.
02A03-1503-CR-90
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff Judge
Trial Court Cause No.
02D06-1404-FA-23
Crone, Judge.
Case Summary
[1] Tommy Orlando Townsend, Sr., appeals his convictions and fifty-five-year
aggregate sentence for class A felony burglary and class B felony criminal
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confinement. He contends that his convictions require reversal because the
jury’s rejection of his insanity defense is contrary to law. He also contends that
the trial court erred in giving the State’s tendered instruction on demeanor
evidence and refusing his own instruction on that issue. In addition, he argues
that the trial court abused its discretion in sentencing him by failing to find that
temporary mental illness was a mitigating circumstance. He also asserts that
his sentence is inappropriate in light of the nature of the offenses and his
character.
[2] We conclude that the jury properly rejected Townsend’s insanity defense
because there was evidence that his mental state at the time of the offenses was
due to voluntary intoxication rather than a result of mental disease or defect.
We also conclude that any error in instructing the jury was harmless. With
regard to sentencing, we conclude that the trial court did not abuse its discretion
by declining to find that temporary mental illness was a mitigating factor.
Finally, we conclude that Townsend has failed to carry his burden to show that
his sentence is inappropriate. Therefore, we affirm.
Facts and Procedural History
[3] The facts most favorable to the verdicts show that in January 2014, Townsend
and Zaida Ortiz separated after nineteen years of marriage. The following
month, Ortiz filed for divorce. Townsend remained living at their family home,
while Ortiz moved into an apartment, both in Fort Wayne. Townsend and
Ortiz have two sons, who were eight and twenty-three years old at the time.
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Due to the couple’s estrangement, Townsend became depressed and drank
regularly.
[4] In April 2014, on the Friday before Easter, the children went to stay with
Townsend. That weekend Townsend was “ill.” Tr. at 45-46. On Saturday
night, he took 50 milligrams of Flexeril, a prescription muscle relaxant that he
received from Ortiz, and one or two capsules of Dimetapp, an over-the-counter
cold medicine. He also took another pill, which was unidentified.
[5] At approximately 9:30 a.m. on Easter, Ortiz finished work and returned to her
apartment. She became alarmed because some of her things were strewn all
over her bed, which was not how she had left it. She found Townsend hiding in
her bathroom. She was not expecting him to be in her apartment. She had not
given him a key to the apartment or permission for him to be there. Ortiz asked
Townsend what he was doing there. He told her that they needed to talk. She
told him to leave. He said that he wanted to talk about the divorce. He wanted
Ortiz to call her attorney and call off the divorce. Ortiz persuaded Townsend to
exit the apartment by telling him that she would be willing to talk to him
outside, but after he went out she remained inside. They argued at the front
door. She told him, “You’re obviously not sick.” Id. at 48. She did not think
that Townsend appeared to have a cold or the flu. She started to close the door.
Townsend blocked it with his foot, but she managed to close it.
[6] Ortiz called her elder son to see whether he had given Townsend a key to her
apartment and left a voicemail message. Then she heard noises at the front
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door and was afraid that Townsend was trying to get back in. She went to the
front door. Townsend flung the door open and punched her in the head. Her
phone flew across the room. Townsend came at her with a knife, and she
started screaming. Townsend told her that she should have called the attorney
and stopped the divorce as he had told her to do. He grabbed Ortiz and
slammed her to the ground. She felt him hit her three times in the back, and “it
hurt so bad [she] could barely breathe.” Id. at 50. Townsend flipped her over.
He got on top of her, held her down, and stabbed her in the chest. At that point
she realized that he had stabbed her in the back. Townsend put his hand over
her mouth and nose and said, “[D]ie bitch die.” Id. Ortiz could not breathe.
[7] Townsend got up and said, “[O]h my God. What did I do? What did I do?
[… ] you need to help me. You need to help me.” Id. at 51. Ortiz was still
lying on the floor. She told Townsend to call 911. He pretended to call the
EMS. He went into the kitchen. Ortiz tried to stand up and walk to the front
door, but she fell down. Townsend picked her up and put her back where she
had been. She saw blood on the carpet and watched as Townsend tried to clean
it with bleach. She wondered why it was taking so long for the EMS to arrive.
She asked Townsend if he had really called the EMS. He had not, but he told
her that he had. Id. at 52.
[8] Townsend offered to take Ortiz to the hospital, and she agreed. He took her
outside and put her in the front passenger seat of his Yukon. She looked for
someone to help her, but saw no one. Townsend drove away. He told Ortiz
that he did not have enough gas. She gave him her debit card, and he stopped
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for gas. Townsend then drove Ortiz to their family home and parked the
Yukon in the garage so that the passenger door was so close to the wall that
Ortiz could not open it. Townsend went inside the house. Ortiz was afraid that
he was going to kiss their younger son goodbye and then kill her and kill
himself. She saw her cell phone, grabbed it, and called 911. She told the
operator that she had been stabbed, needed help, and was in a tan Yukon. That
was all she was able to say before Townsend came back and grabbed the phone.
[9] Townsend drove away. Ortiz began to go in and out of consciousness. She
thought that Townsend appeared to be driving toward Decatur, Indiana. At
one point, Townsend stopped the car so that she could urinate. Townsend then
dressed the knife wounds in her back with bandages that were in a first-aid kit.
He did not have enough bandages for the chest wound, so Ortiz held a towel
over it.
[10] They drove on. Ortiz started to suspect that Townsend was driving to Piqua,
Ohio, about a two hours away, because he had family there. Townsend made
at least four more stops: when he asked for directions; when Ortiz lost control
of her bowel; when Townsend got her a drink; and when she woke up
vomiting. Ortiz, a registered nurse, believed that she was going into shock. She
kept asking Townsend to take her to the hospital, but he did not.
[11] Ortiz asked Townsend to take her to his uncle, Richard King, who lived in
Piqua. Townsend drove by King’s house several times. At around 5:00 p.m.,
King had arrived home, and he saw Townsend pull up. King asked Townsend
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what he was doing there, but Townsend drove away. Townsend immediately
returned, and King asked what was going on. King realized that Ortiz was in
the Yukon with Townsend. King went over to the passenger side to talk to
Ortiz and saw a little bit of blood. King asked Townsend what was going on,
but Townsend was unresponsive. Townsend drove away again but returned.
King again asked Townsend what was going on, and Townsend still did not
respond. King looked at Ortiz, who shook her head. King told Townsend to
let Ortiz out of the car so that King could take her to the hospital. Townsend
eventually agreed, and King rushed her to the hospital. Ortiz had to be
transferred to a hospital with a trauma center due to her critical condition.
Ortiz had three stab wounds to her back and one to her chest. She also had a
cut on her hand from trying to defend herself.
[12] Townsend did not follow King to the hospital. Police found Townsend around
5:47 p.m. He had crashed his Yukon and was unresponsive. The Yukon was
still running, so the officer opened the passenger door to turn the vehicle off and
a box of Sleepinal pills fell out. Id. at 131.
[13] The State charged Townsend with class A felony burglary, class B felony
aggravated battery, class B felony criminal confinement, and class C felony
intimidation. Townsend filed a notice of intent to offer an insanity defense.
The trial court appointed Drs. Rebecca Mueller and Stephen Ross to provide
expert testimony on whether Townsend was legally insane when he committed
the offenses. Both interviewed Townsend in July 2014.
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[14] A two-day jury trial was held. Dr. Mueller testified that when she interviewed
Townsend he was experiencing some short-term memory loss. Townsend told
her that the night before he committed the offenses he took a Flexeril pill that
he got from Ortiz, one or two Dimetapp capsules, and “another pill that he
described as not being Flexeril.” Id. at 225. Dr. Mueller testified that she “later
found out that he had taken more Flexeril than he realized. He had taken
probably 50 mg. of Flexeril the night before.” Id. The therapeutic dose of
Flexeril is 15 to 30 milligrams in a 24-hour period. Id. at 227. Dr. Mueller
concluded that Townsend was legally insane at the time of the offenses. Id. at
216. Specifically, she concluded that he suffered anticholinergic intoxication
with secondary psychosis as a result of “[v]arying kinds of medications.” Id. at
216, 233-34. Dr. Mueller explained that psychosis generally means “a break
from reality” where a person does not “perceive things as they are truly
happening.” Id. at 220. She testified that any psychosis that Townsend had
was a result of the medication and that all the information available to her
showed that he took the medicines voluntarily. Id. at 234-35. She further
testified that Townsend’s depression from his divorce probably contributed to
“some poor judgment about taking too much medication.” Id. at 274. She also
testified that Townsend did not have a history of psychosis and that he had no
memory of the events after he took the medication until he woke up two days
later chained to a hospital bed.
[15] Dr. Ross testified that Townsend was psychotic at the time of the offense,
related to the “voluntary consumption of medications.” Id. at 282. He also
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testified that Townsend was unable to appreciate the wrongfulness of his
conduct at the time of the offense. Id. at 303.
[16] The State requested a jury instruction informing the jury that it could consider
Townsend’s demeanor before, during, and after the crime to determine whether
he was legally insane because his demeanor might be more indicative of his
mental health than mental exams conducted weeks or months later (“the State’s
Demeanor Instruction”). Appellant’s App. at 71 (State’s Proposed Instruction
No. 8); Tr. at 195-96. Townsend objected that the State’s Demeanor
Instruction was already covered by other instructions, invaded the province of
the jury, was unsupported by the evidence, and was confusing. The trial court
gave the State’s Demeanor Instruction over Townsend’s objection.
[17] Townsend also requested a jury instruction on demeanor evidence
(“Townsend’s Demeanor Instruction”), which stated that demeanor evidence
before and after the crime was of more limited probative value than demeanor
evidence during the crime. Appellant’s App. at 84 (Defendant’s Proposed
Instruction No. 6). The State conceded that it was an accurate statement of the
law and did not object to it, but the trial court refused it on the grounds that it
was already covered by other instructions. Tr. at 201-02.
[18] The trial court also instructed the jury that temporary mental incapacity
produced by voluntary intoxication is not an excuse for a crime, and that such
temporary mental incapacity is not considered a mental disease or defect under
Indiana’s insanity statute. Appellant’s App. at 47. During deliberations, the
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jury sent the foreman out with a note asking whether voluntary intoxication
was the same as voluntary consumption. Tr. at 367. The trial court directed
the jury to rely on the evidence and the court’s instructions.
[19] The jury found Townsend guilty as charged. The trial court entered judgment
of conviction for class A felony burglary and class B felony criminal
confinement and vacated the remaining counts to avoid double jeopardy. 1 The
trial court sentenced Townsend to consecutive terms of forty years for burglary
and fifteen years for criminal confinement, for an aggregate term of fifty-five
years. Townsend appeals.
Discussion and Decision
Section 1 - The jury’s decision to reject Townsend’s insanity
defense was not contrary to law.
[20] The insanity defense is an affirmative defense for which the defendant carries
the burden of proof by a preponderance of the evidence. Ind. Code § 35-41-4-
1(b). A defendant may be found not responsible by reason of insanity if the
defendant establishes both that (1) he suffers from a mental disease or defect and
(2) the mental disease or defect rendered the defendant unable to appreciate the
wrongfulness of his conduct at the time of the offense. Ind. Code § 35-41-3-
1
When judgment of conviction is not entered on the jury’s verdict, it is unnecessary to vacate the verdict.
“[A] claim of multiple punishment for the same offense requires multiple judgments of conviction, entered by
the trial court.” Carter v. State, 750 N.E.2d 778, 781 n.8 (Ind. 2001). In fact, “more harm than good may
result if a trial court ‘vacates’ a jury verdict not reduced to judgment. If a conviction for a greater offense is
reversed … a conviction for the lesser offense may remain valid.” Id. at 781 n.9.
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6(a); Galloway v. State, 938 N.E.2d 699, 708 (Ind. 2010). “‘[M]ental disease or
defect’ means a severely abnormal mental condition that grossly and
demonstrably impairs a person’s perception, but the term does not include an
abnormality manifested only by repeated unlawful or antisocial conduct.” Ind.
Code § 35-41-3-6(b).
[21] “‘A determination of insanity is a question for the trier of fact.’” Berry v. State,
969 N.E.2d 35, 38 (Ind. 2012) (quoting Gambill v. State, 675 N.E.2d 668, 672
(Ind. 1996)). A defendant who claims that his insanity defense should have
prevailed at trial appeals from a negative judgment, and “we will reverse only
when the evidence is without conflict and leads only to the conclusion that the
defendant was insane when the crime was committed.” Thompson v. State, 804
N.E.2d 1146, 1149 (Ind. 2004) (emphasis added). We will neither reweigh the
evidence nor assess witness credibility but will consider “only the evidence most
favorable to the judgment and the reasonable and logical inferences drawn
therefrom.” Id.
[22] As noted above, Townsend had the burden of proving both that he had a
mental disease or defect and that as a result he did not appreciate the
wrongfulness of his conduct at the time of the offenses. As for mental disease
or defect, the State argues that the jury properly rejected Townsend’s insanity
defense because “any mental defect was caused by his voluntary intoxication.”
Appellee’s Br. at 23. “‘Temporary mental incapacity, when induced by
voluntary intoxication, normally furnishes no legal excuse for, or defense to, a
crime.’” Berry, 969 N.E.2d at 38 (quoting Jackson v. State, 273 Ind. 49, 52, 402
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N.E.2d 947, 949 (1980)). Indiana Code Section 35-41-2-5 provides,
“Intoxication is not a defense in a prosecution for an offense and may not be
taken into consideration in determining the existence of a mental state that is an
element of the offense unless the defendant meets the requirements of IC 35-41-
3-5.” Indiana Code Section 35-41-3-5 provides, to establish involuntary
intoxication, a defendant must establish that “the intoxication resulted from the
introduction of a substance into his body: (1) without his consent; or (2) when
he did not know that the substance might cause intoxication.” “Involuntary
intoxication is a defense to the crime charged if, as a result of the intoxication,
the defendant was unable to appreciate the wrongfulness of the conduct at the
time of the offense.” Ellis v. State, 736 N.E.2d 731, 734 (Ind. 2000).
Involuntary intoxication is a defense that negates culpability for the committed
offenses. Id.
[23] Townsend counters that he never claimed that he was involuntarily intoxicated
but that he was legally insane. Nevertheless, he bore the burden of proving that
he was legally insane and therefore bore the burden of proving that he had a
mental disease or defect. Mental disease or defect, for purposes of the insanity
statute, does not include temporary mental incapacity that results from
voluntary intoxication. 2 Berry, 969 N.E.2d at 42. We observe that the jury was
2
However, “Indiana recognizes situations where ‘the ingestion of intoxicants, though voluntary, has been
abused to the point that it has produced mental disease.’” Berry, 969 N.E.2d at 42 (quoting Jackson, 273 Ind.
at 52, 402 N.E.2d at 949). For example, “settled” or “fixed” insanity resulting from chronic and severe
alcohol abuse is a type of mental disease as defined by Indiana Code Section 35-41-3-6(b). Id.
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instructed on voluntary intoxication as follows: “Temporary mental incapacity
produced by voluntary intoxication is not an excuse for a crime. In other
words, that sort of temporary mental incapacity is not considered a mental
disease or defect under Indiana’s insanity statute.” Appellant’s App. at 47.
“The intersection of voluntary intoxication and insanity is murky at best.”
Berry, 969 N.E.2d at 42. “Ultimately, it is for the trier of fact ‘to determine
whether the accused’s conduct was the result of a diseased mind–regardless of
the source of the disease–or was the result of voluntary intoxication.’” Id. at 43
(quoting Jackson, 273 Ind. at 52, 402 N.E.2d at 949). To succeed on appeal,
Townsend must show that the evidence is without conflict and leads only to the
conclusion that his mental state at the time he committed the offenses was not
the result of voluntary intoxication.
[24] Here, Dr. Mueller concluded that Townsend was legally insane at the time that
he committed the offenses. Tr. at 216. Specifically, she concluded that he
suffered anticholinergic intoxication with secondary psychosis as a result of
medications, which he voluntarily took. Id. at 216, 234-35. Dr. Ross
concluded that Townsend was psychotic at the time of his crimes related to
voluntary consumption of medications. Id. at 282. Thus, while both experts
agreed that Townsend was suffering from psychosis at the time he committed
the offenses, they also both agreed that his psychosis was caused by his
voluntary consumption of medications. There is no question that Townsend
knowingly and voluntarily took at least two different medications, Flexeril and
Dimetapp. Significantly, the Flexeril was a prescription drug for which he did
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not have a prescription, and he mixed it with at least one other drug. Although
Ortiz testified that she learned that Townsend was “ill” on Friday night when
the children went to go stay with him, id. at 45-46, there is no evidence as to
why Townsend was taking a muscle relaxant. Presumably, he took the
Dimetapp for cold and/or flu symptoms, but a trier of fact could reasonably
question why he would take a muscle relaxant for a cold. From the evidence
presented, the jury reasonably could have concluded that Townsend’s mental
state at the time of the offenses was a result of his voluntary intoxication.
Accordingly, we conclude that the evidence as to Townsend’s insanity was not
without conflict, and we find no grounds for reversal on this basis.
Section 2 - Any error in instructing the jury was harmless.
[25] Townsend also argues that the trial court erred in giving the State’s Demeanor
Instruction without also giving Townsend’s Demeanor Instruction. Our
standard of review is well settled.
When reviewing a trial court’s decision to give or refuse to give a
party’s tendered instruction, we consider (1) whether the
tendered instruction correctly states the law; (2) whether there
was evidence presented at trial to support giving the instruction;
and, (3) whether the substance of the instruction was covered by
other instructions that were given. The trial court has broad
discretion as to how to instruct the jury, and we generally review
that discretion only for abuse. Where, however, … the
appellant’s challenge to the instruction is based on the first of our
three considerations–an argument that the instruction was an
incorrect statement of the law–we review the trial court’s
interpretation of that law de novo.
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Kane v. State, 976 N.E.2d 1228, 1230-31 (Ind. 2012) (citations and quotation
marks omitted).
[26] “A defendant is entitled to a reversal if he affirmatively demonstrates that the
instructional error prejudiced his substantial rights.” Vaughn v. State, 13 N.E.3d
873, 884 (Ind. Ct. App. 2014), trans. denied. “Instructional error is harmless
‘where a conviction is clearly sustained by the evidence and the jury could not
properly have found otherwise’ but ‘will result in reversal when the reviewing
court cannot say with complete confidence that a reasonable jury would have
rendered a guilty verdict had the instruction not been given.’” Inman v. State, 4
N.E.3d 190, 200 (Ind. 2014) (quoting Dill v. State, 741 N.E.2d 1230, 1233 (Ind.
2001)).
[27] The State’s Demeanor Instruction read,
A finding that a defendant was sane at the time of the crime may
be sustained by probative demeanor evidence from which a
conflicting inference of sanity may be drawn. Demeanor is
useful because a defendant’s behavior before, during, and after a
crime may be more indicative of actual mental health at the time
of the crime than mental exams conducted weeks or months
later.
Appellant’s App. at 48. Townsend’s Demeanor Instruction read, “Demeanor
evidence before and after a crime is of more limited value than the accused[’s]
demeanor during the crime. The insanity defense concerns the accused’s
mental state at the time of the crime. Id. at 84.
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[28] Both the State’s and Townsend’s Demeanor Instructions are taken from
Galloway, 938 N.E.2d at 712, 174, and address evidence pertaining to whether
Townsend appreciated the wrongfulness of his actions at the time of the
offenses. We have already concluded that there was sufficient evidence upon
which the jury could reasonably find that, as a result of Townsend’s voluntary
intoxication, he was not suffering from a mental disease or defect. Given the
substantial evidence of Townsend’s voluntary intoxication, we can say with
complete confidence that a reasonable jury would have rendered a guilty verdict
had the trial court agreed to give both instructions or refused to give either
instruction. Therefore, assuming, without deciding, that the trial court erred in
giving the State’s Demeanor Instruction and refusing Townsend’s Demeanor
Instruction, that error did not prejudice Townsend’s substantial rights.
Accordingly, we conclude that any possible error was harmless and does not
require reversal.
Section 3 – The trial court did not abuse its discretion by not
finding that temporary insanity was a mitigating
circumstance.
[29] At sentencing, the trial court found that Townsend’s criminal history, failed
efforts at rehabilitation, and the nature and circumstances of the crimes were
aggravating circumstances and that his clinical depression, long-term
employment, and remorse were mitigating factors. The trial court found that
the aggravators outweighed the mitigators and sentenced Townsend to
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consecutive terms of forty years for burglary and fifteen years for criminal
confinement, for an aggregate term of fifty-five years.
[30] Townsend asserts that the trial court should have found that his temporary
insanity was a mitigating factor. We observe that
the determination of mitigating circumstances is within the
discretion of the trial court. The trial court is not obligated to
accept the defendant’s argument as to what constitutes a
mitigating factor, and a trial court is not required to give the
same weight to proffered mitigating factors as does a defendant.
A trial court does not err in failing to find a mitigating factor
where that claim is highly disputable in nature, weight, or
significance. An allegation that a trial court abused its discretion
by failing to identify or find a mitigating factor requires the
defendant on appeal to establish that the mitigating evidence is
significant and clearly supported by the record.
Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct. App. 2012) (citations omitted),
trans. denied.
[31] Mental illness is not necessarily a significant mitigating factor; “rather, [it] is a
mitigating factor to be used in certain circumstances, such as when the evidence
demonstrates longstanding mental health issues or when the jury finds that a
defendant is mentally ill.” Ousley v. State, 807 N.E.2d 758, 762 (Ind. Ct. App.
2004) (referring to Crawford v. State, 770 N.E.2d 775, 782-83 (Ind. 2002);
Gambill, 675 N.E.2d at 668; Biehl v. State, 738 N.E.2d 337, 340 (Ind. Ct. App.
2000), trans. denied). Here, the trial court found that Townsend’s depression
was a mitigating factor, but Townsend challenges its refusal to give mitigating
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weight to the temporary psychosis caused by the medications he took. We note
that the jury rejected his insanity defense, and it also declined to find him guilty
but mentally ill. Further, there is no evidence that Townsend’s psychosis was a
symptom of a longstanding mental illness. We conclude that the trial court did
not abuse its discretion by declining to find that temporary insanity was a
mitigating factor.
Section 4 – Townsend has failed to carry his burden to show
that his sentence is inappropriate.
[32] Finally, Townsend contends that his fifty-five-year sentence is inappropriate
under Indiana Appellate Rule 7(B), which provides, “The Court may 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.” The nature of the offense is
found in the details and circumstances of the commission of the offense. Croy v.
State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). The character of the offender
shown by the offender’s life and conduct. Id. When reviewing a sentence, our
principal role is to leaven the outliers rather than necessarily achieve what is
perceived as the correct result. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). “We do not look to determine if the sentence was appropriate; instead
we look to make sure the sentence was not inappropriate.” Conley v. State, 972
N.E.2d 864, 876 (Ind. 2012). Townsend bears the burden to show that his
sentence is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007),
clarified on reh’g, 875 N.E.2d 218.
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[33] Turning first to the nature of the offense, we observe that “the advisory sentence
is the starting point the Legislature selected as appropriate for the crime
committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). Townsend was
convicted of class A felony burglary and class B felony criminal confinement.
The sentencing range for a class A felony is between twenty and fifty years,
with an advisory sentence of thirty years. Ind. Code § 35-50-2-4. The
sentencing range for a class B felony is between six and twenty years, with an
advisory sentence of ten years. Ind. Code § 35-50-2-5. The trial court
sentenced Townsend to consecutive terms of forty years for the class A felony
and fifteen years for the class B felony.
[34] Here, Townsend entered Ortiz’s apartment without her permission, and was
lying in wait for her. Then, he refused to leave when she asked him to. When
she refused to do as he asked, he stabbed her four times. He also put his hand
over her mouth and told her, “[D]ie bitch die.” Tr. at 50. He pretended to call
for help and claimed that he had called for help even though he had not. He
did not take her to get medical attention. Instead, he kept her in his car for
some seven hours, letting her suffer and preventing her from receiving medical
care. These circumstances are more egregious than what is necessary to
commit class A felony burglary and class B felony criminal confinement. 3
3
Class A felony burglary is defined as breaking and entering the building or structure of another person with
intent to commit a felony in it and it results in bodily injury or serious bodily injury. Ind. Code § 35-43-2-1.
Class B felony criminal confinement is defined as knowingly or intentionally confining another person
without the person’s consent while armed with a deadly weapon. Ind. Code § 35-42-3-3.
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[35] As for Townsend’s character, his long-term employment and financial support
of his family are favorable. He was convicted of battery, criminal recklessness,
and criminal mischief over twenty years ago. Nevertheless, that battery
conviction, like this one, involved an incident of domestic violence. We
conclude that Townsend has failed to carry his burden to show that his fifty-
five-year sentence is inappropriate based on the nature of the offenses and his
character.
[36] Based on the foregoing, we affirm Townsend’s convictions and sentence.
[37] Affirmed.
May, J., and Bradford, J., concur.
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