Court of Appeals of Indiana | Memorandum Decision 18A-CR-1736 | January 15, 2019 Page 1 of 7

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

Devon M. Sharpe

Jenner & Pattison

Madison, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr. 

Attorney General of Indiana 

Henry A. Flores, Jr.

Deputy Attorney General 

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

Donald J. Howard,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

January 15, 2019

Court of Appeals Case No.

18A-CR-1736

Appeal from the 

Jefferson Circuit Court

The Honorable 

Darrell M. Auxier, Judge

Trial Court Cause No.

39C01-1612-F3-1132

Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1736 | January 15, 2019 Page 2 of 7

[1] Donald J. Howard (“Howard”) pleaded guilty to battery resulting in serious 

bodily injury1 as a Level 3 felony and was sentenced to nine years, with six 

years executed in the Indiana Department of Correction (“DOC”) and three 

years suspended to probation. He now appeals, contending that his sentence is 

inappropriate in light of the nature of the offense and his character.

[2] We affirm.

Facts and Procedural History

[3] Howard and B.C. (“Mother”) are the parents of Z.H. On November 12, 2016, 

Mother, Howard, and Howard’s parents took then six-week-old Z.H. to Riley 

Hospital for treatment of her torn frenulum.2 Dr. Tara Harris examined Z.H. 

and said, “This is the worst injury of this type that I’ve seen in my career.” Tr. 

Vol. II at 13. Dr. Harris also noted that Z.H. had bruises on her arms, jaw, 

cheek, thigh, and knees, plus abrasions on her left knee and ankle, and on her 

back. Id. at 11-12. X-rays revealed that Z.H. had a broken clavicle and had 

suffered many broken ribs, five on the left side and three on the right. Id. at 14-

17. Z.H. also had hairline fractures to her left arm, wrist, and femur. Id. at 18-

21, 28. Dr. Harris concluded that Z.H.’s injuries were sustained over time and 

were not the result of an accident. Id. at 11, 12, 14-18. Dr. Harris concluded

that the injuries were characteristic of severe physical abuse and would have 

 

1

See Ind. Code § 35-42-2-1(c)(1), (j).

2 The frenulum is the “little piece of tissue that connects the upper lip to the gums.” Tr. Vol. II at 12. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1736 | January 15, 2019 Page 3 of 7

been extremely painful when sustained. Id. at 30-31. The hospital alerted the 

police to Z.H.’s injuries.

[4] Thereafter, the State charged Howard with Count I, Level 3 felony battery 

resulting in serious bodily injury to a child under fourteen years of age, and 

Count II, Level 3 felony neglect of a dependent resulting in serious bodily 

injury. Pursuant to a written agreement, Howard pleaded guilty to Count I,

with sentencing left to the discretion of the trial court, and the State agreed to 

dismiss Count II. Appellant’s Conf. App. at 55-56. During the pendency of the 

action, and in connection with these charges, Howard was involved in a Child 

in Need of Services (“CHINS”) proceeding in Jefferson County. Id. at 28. 

[5] At the sentencing hearing, Dr. Harris testified for the State regarding Z.H.’s 

extensive injuries. The defense presented the testimony of Howard, Mother, 

and four individuals who had provided services pertaining to the CHINS 

proceeding. When asked whether he could remember the events that caused 

Z.H.’s injuries, Howard said, “There was a couple of times that I may have 

squeezed her too hard.” Tr. Vol. II at 105-06. Even so, Howard denied any 

knowledge that he had harmed Z.H. Id. 

[6] At the close of the sentencing hearing, the trial court accepted Howard’s guilty 

plea and set forth the following aggravating circumstances: (1) Z.H. was less 

than twelve years old and was in Howard’s care and custody; (2) Z.H. was 

severely abused on several occasions; (3) damage to her upper lip was the worst

such injury Dr. Harris had ever seen; (4) the injuries were the result of severe 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1736 | January 15, 2019 Page 4 of 7

physical abuse; and (5) Howard, claiming that he was unsure how the injuries 

occurred, had not accepted full responsibility for his actions. Id. at 11-21, 30-

31. Regarding mitigating factors, the trial court found: (1) Howard has 

minimal criminal history and has successfully completed community 

supervision in the past; and (2) Howard has taken substantial steps to address 

his problem. Explaining that the aggravating factors and the mitigating factors 

“balance each other out,” the trial court sentenced Howard to nine years, with 

three years suspended to probation. Id. at 176. Howard now appeals.

Discussion and Decision

[7] Howard contends that his sentence is inappropriate. Pursuant to Indiana 

Appellate Rule 7(B), this court “may revise a sentence authorized by statute if, 

after due consideration of the trial court’s decision, the [c]ourt finds that the 

sentence is inappropriate in light of the nature of the offense and the character 

of the offender.” “In conducting our review, we may consider all aspects of the 

penal consequences imposed by the trial court in sentencing, i.e., whether it 

consists of executed time, probation, suspension, home detention, or placement 

in community corrections, and whether the sentences run concurrently or 

consecutively.” Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). Our 

Supreme Court has explained that the principal role of appellate review should 

be to attempt to leaven the outliers, “not to achieve a perceived ‘correct’ result 

in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008); Yoakum v. 

State, 95 N.E.3d 169, 176 (Ind. Ct. App. 2018), trans. denied. 
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[8] We independently examine the nature of Howard’s offense and his character 

under Appellate Rule 7(B) with substantial deference to the trial court. 

Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015). “[W]e do not look to see 

whether the defendant’s sentence is appropriate or if another sentence might be 

more appropriate; rather, the test is whether the sentence is ‘inappropriate.’” 

Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied. Whether 

a sentence is inappropriate ultimately depends upon “the culpability of the 

defendant, the severity of the crime, the damage done to others, and a myriad 

of other factors that come to light in a given case.” Cardwell, 895 N.E.2d at 

1224. Howard bears the burden of persuading us that his sentence is 

inappropriate in light of the nature of the offense and his character. Id.

[9] We begin by noting that Howard sets out his entire argument regarding the 

nature of the offense by saying: “Howard argues the sentence ordered by the 

trial court was inappropriate and seeks any revised sentence this court finds to 

be appropriate based on the facts and circumstances of this case. Howard 

respectfully requests this Court exercise its power to revise his sentence . . . .” 

Appellant’s Br. at 10-11. The State maintains that Howard has not set forth an 

analysis for the nature of the offense and that this failure to argue both prongs 

of Rule 7(B) results in waiver of his inappropriateness claim. Appellee’s Br. at 8. 

As we explain below, whether by waiver or on the merits, we conclude that 

Howard’s sentence was not inappropriate. 

[10] “The nature of the offense is found in the details and circumstances of the 

commission of the offense and the defendant’s participation.” Croy v. State, 953 
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N.E.2d 660, 664 (Ind. Ct. App. 2011). Howard admits, “It is incontrovertible 

that the crime of battery on a person under the age of 14 is a serious one, with 

sometimes lasting consequences on victims.” Appellant’s Br. at 10. We find that 

statement particularly true under the facts here. Howard battered Z.H. over a 

period of time. Z.H., who was at that time only six weeks old, suffered 

substantial injuries, including more than ten broken bones, a number of 

contusions and abrasions, and a tear of her frenulum, which was the most 

serious tear Dr. Harris had seen in her career. Tr. Vol. II at 11-31. Z.H. was 

Howard’s child and was in his care at the time the crimes were committed. 

[11] “The ‘character of the offender’ portion of the standard refers to the general 

sentencing considerations and the relevant aggravating and mitigating 

circumstances.” Reis v. State, 88 N.E.3d 1099, 1104-05 (Ind. Ct. App. 2017). 

Howard claims his good character arises from the fact that he is at moderate 

risk to reoffend, he accepted responsibility for his actions, he pleaded guilty, he 

cooperated with the CHINS proceeding, and he has a limited criminal history. 

Appellant’s Br. at 13. We are not persuaded that a moderate risk to reoffend 

reflects an exemplary character, and we agree with the trial court that Howard’s 

statement that he may have squeezed Z.H. suggests that Howard has not 

accepted full responsibility for his actions. Tr. Vol. II at 105-06. While 

cooperating in the CHINS proceeding is commendable, that cooperation does 

not necessarily reflect good character regarding Howard’s repeated battery 

toward Z.H. Finally, regarding criminal history, the trial court did not find that 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1736 | January 15, 2019 Page 7 of 7

Howard had no criminal history. Instead, it found that he had minimal 

criminal history. Id. at 176. 

[12] “The advisory sentence is the starting point to determine the appropriateness of 

a sentence.” Eisert v. State, 102 N.E.3d 330, 334 (Ind. Ct. App. 2018) (citing 

Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 878 N.E.2d 

218 (Ind. 2007)), trans. denied. By entering into the written agreement, Howard 

agreed to plead guilty to one Level 3 felony battery resulting in serious bodily 

injury to a child under fourteen years of age, and in exchange, the State 

dismissed a second Level 3 felony neglect of a dependent resulting in serious 

bodily injury. The sentencing range for a Level 3 felony is between three years

and sixteen years, with the advisory being nine years. Ind. Code § 30-50-2-5(b). 

Based on the nature of the offense and Howard’s character, we cannot say that 

the advisory sentence of nine years, of which three were suspended to 

probation, is inappropriate

[13] Affirmed. 

Riley, J., and Robb, J., concur.