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. 

ATTORNEY FOR APPELLANT

Randy M. Fisher 

Leonard, Hammond, Thoma & Terrill 

Fort Wayne, Indiana 

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller 

Attorney General 

Paula J. Beller 

Deputy Attorney General 

Indianapolis, Indiana 

IN THE 

COURT OF APPEALS OF INDIANA

Stephen D. Booker, 

Appellant-Defendant, 

v. 

State of Indiana, 

Appellee-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. 
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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.