Court of Appeals of Indiana | Memorandum Decision 02A04-1505-CR-307 | December 23, 2015 Page 1 of 8 

### 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 Randy M. Fisher Leonard, Hammond, Thoma & Terrill Fort Wayne, Indiana A TTORNEYS FOR A PPELLEE Gregory F. Zoeller Attorney General
Paula J. Beller Deputy Attorney General Indianapolis, Indiana


### IN THE 

# COURT OF APPEALS OF INDIANA
Stephen D. Booker, A

ppellan t -Defendant,

v. 

### State of Indiana, A

ppelle e -Plaintiff December 23, 2015 Court of Appeals Case No. 02A04-1505-CR-307 Appeal from the Allen Superior Court The Honorable Frances C. Gull Trial Court Cause No. 02D05-1406-FB-110

Vaidik, Chief Judge.Court of Appeals of Indiana | Memorandum Decision 02A04-1505-CR-307 | December 23, 2015 Page 2 of 8 

# Case Summary
[1] Stephen D. Booker appeals his eighteen-y ear 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 fr iends to celebrate her twentieth birthday on March 23, 2013. Over the course of the evening, P.J. consumed enough alcohol to become incapacita ted. At around 3:00 a.m ., P.J.’s sister helped her get into bed and the sister stayed for a bout 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. Unfo rtunately, the lock on P.J.’s apartment only worked if the door was being pulle d 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. multip le times. All of the neighbors agreed that they were unable to wake P.J.—t hat 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 in to P.J.’s apartment with Nina Williams when Williams was checking on P.J. “to see if she wasCourt of Appeals of Indiana | Memorandum Decision 02A04-1505-CR-307 | December 23, 2015 Page 3 of 8 breathing.” Tr. p. 110. Booker left Wi lliams’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 intercou rse 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 wi th 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 Co unt 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 gr ounds that the trial court abused its discretion and that the sentence is in appropriate based on the nature of the offense and his character.Court of Appeals of Indiana | Memorandum Decision 02A04-1505-CR-307 | December 23, 2015 Page 4 of 8 

## I. Abuse of Discretion
[7] Sentencing decisions rest within the soun d discretion of the trial court and are reviewed on appeal only fo r 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 circumstance s 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 wa ys, including entering a sentencing statement that omits mitigating factors th at are clearly supported by the record. Id. at 490-91. However, the “trial co urt is not obligated to accept the defendant’s contentions as to what constitutes a mitigat ing factor[,]” nor is it required to give the same weight to pr offered mitigating factors as the defendant does. Gross v. State , 769 N.E.2d 1136, 1140 (I nd. 2002). Booker bears the burden of establishing “that the miti gating 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 tr ial court abused its disc retion by not finding the following to be mitigating factors: his re cent college graduation, the hardship on his dependent children, his mental health history, and his history of substance abuse. The record reflec ts that the trial court considered the proffered mitigating factors, but did no t find them significant.Court of Appeals of Indiana | Memorandum Decision 02A04-1505-CR-307 | December 23, 2015 Page 5 of 8 [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 scho ol 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 li fe and academic achievements before commitment.” Id. at 624. In this case, the trial court consid ered Booker’s education, but found it not to be a mitigating circumstance. Sentencing Tr. p. 22. That is within the se ntencing court’s discretion.

[10] Second, Booker argues th at the eighteen-year sentence will cause undue hardship for his dependent children. “Many persons convicted of serious crimes have one or more children and, ab sent special circumstances, trial courts are not required to find th at imprisonment will result in an undue hardship.” Dowdell v. State , 720 N.E.2d 1146, 1154 (Ind. 19 99). Booker has three minor, dependent children, and he pays $350 pe r month for their support. However, two of the children are seventeen and on e is sixteen. The trial court observed that the minimum executed sentence woul d be six years. Ev en if the minimum sentence is imposed in this case, the ch ildren 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 hard ship 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.Court of Appeals of Indiana | Memorandum Decision 02A04-1505-CR-307 | December 23, 2015 Page 6 of 8 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 hardsh ip than incarceration for a shorter term.”), trans. denied

.
[11] Next, Booker contends that the trial co urt should have considered his mental health history. This Co urt considers several factor s in determining whether mental illness should be given mitigatin g weight. Those factors include “the extent of the inability to control behavior, the overall limit on function, the duration of the illness, and the nexu s 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 “Bor derline Anxiety Disorder” and raping P.J. Appellant’s App. p. 98. The trial judge properly declin ed to consider it.

[12] Finally, Booker argues that the trial cour t should have consid ered his history of substance abuse to be a mi tigating 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 ha s not taken appropriate steps to treat it, the trial court does no t 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 conv ictions for crimes related to substance abuse, and his pr ior attempts at treatment, the trial court could have reasonably concluded that Booker was aw are of his substance abuse and failed to take appropriate measur es to treat it. Therefor e, we see no abuse ofCourt of Appeals of Indiana | Memorandum Decision 02A04-1505-CR-307 | December 23, 2015 Page 7 of 8 discretion in the trial court’s decision not to give mitigating weight to his addictions.

[13] Booker has not proven that his pr offered mitigating circumstances are significant and clearly supported by the reco rd. 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 subjec t 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 find s 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 und er 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 portrayi ng in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant’sCourt of Appeals of Indiana | Memorandum Decision 02A04-1505-CR-307 | December 23, 2015 Page 8 of 8 character (such as substantial virtuous tr aits or persistent examples of good character).” Stephenson v. State , 29 N.E.3d 111, 122 (Ind. 2015).

[16] Booker argues that his pr offered 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 testimon y 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 in cludes convictions for te n 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 th at the Indiana Court of Appeals has scrutinized under these stat utes.” 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 unre sponsive—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 su pported by the nature of the offense, or by the character of the offender. Bo oker 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.