Court of Appeals of Indiana | Memorandum Decision 18A

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### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this 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.
A TTORNEY FOR A PPELLANT Carlos I. Carrillo Greenwood, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Lee M. Stoy, Jr. Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA
Thomas Lee Campbell , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. August 16, 2018 Court of Appeals Ca se No. 18A

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- 598 Appeal from the Tippecanoe Superior Court The Honorable Randy J. Williams, Judge Trial Court Cause No. 79D01

- 1705

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Riley , Judge .Court of Appeals of Indiana | Memorandum Decision 18A

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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

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[2] We affirm. 

### ISSUES
[3] Campbell presents three issues on appeal, which we restate as: (1) Whe ther 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 andCourt of Appeals of Indiana | Memorandum Decision 18A

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- 598 | August 16, 2018 Page 3 of 10 began “ s creaming” about changing the TV channel. ( Tr. p. 9 )

. Vestal event ually 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

- Swit zer (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 determin ed 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

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- 1.3; Count II, battery by means of a deadly weapon, a Level 5 felony, I.C. § 35

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- 1(c); Count III, intimidation, a Level 5 felony, I.C. § 35

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- 1(a); Count IV, criminal recklessness, a Level 6 felony, I.C. § 35

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- 2; and Count V, domestic battery, a Level 6 felony, I.C. § 35

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- 1.3(a). On January 10, 2018, the trial

cour t conducted a bench trial. During the trial, Campbell testified that he didCourt of Appeals of Indiana | Memorandum Decision 18A

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- 598 | August 16, 2018 Page 4 of 10 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 convicti on. 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 nec essary. 

### 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. d e nied . Thus, “[a] trial; cour t’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 unproblem atic as far as double jeopardy is concerned. Green v.Court of Appeals of Indiana | Memorandum Decision 18A

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- 598 | August 16, 2018 Page 5 of 10 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 g uilty, 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 heari ng 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, mer ger 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, appe llate 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 we igh 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 agre e that all of the remaining Counts merge into that Count.” (Tr. p. 71).Court of Appeals of Indiana | Memorandum Decision 18A

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- 598 | August 16, 2018 Page 6 of 10 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 . Appell ate 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 evid ence 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

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- 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 asse rts 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 V estal 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 toCourt of Appeals of Indiana | Memorandum Decision 18A

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- 598 | August 16, 2018 Page 7 of 10 decide wh ich 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 cha nging the TV channel, Campbell started screaming at her. After the followed her in to 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 at tempt to leaven the outliers, and not to achieve a perceived correct sentence.” Id . atCourt of Appeals of Indiana | Memorandum Decision 18A

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- 598 | August 16, 2018 Page 8 of 10 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]egardi ng 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 ) year s .” I.C. § 35

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- 6 (b). The trial court sentenced Campbell to five years in the Department of Correction with one year executed, two years suspended to community correction s , and one years suspended to probation.

[16] In the heat of a trivial domestic argument about a TV channel, Campbell escalated the discussion by pic king 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 h er. (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).Court of Appeals of Indiana | Memorandum Decision 18A

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- 598 | August 16, 2018 Page 9 of 10 [17] When considering the character of the offende r 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 nu mber 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 las t offense, Campbell was not leading a law abiding life as he admitted to smoking ma rijuana twice per week between the ages of sixteen and fifty

- eight. A s 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 l awful 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 t o 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.Court of Appeals of Indiana | Memorandum Decision 18A

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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