MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 06 2020, 9:59 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jared Michel Thomas Curtis T. Hill, Jr.
JMT Law, LLC d/b/a Thomas Law Attorney General of Indiana
Evansville, Indiana
Lauren A. Jacobsen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles E. Johnson, Jr., March 6, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1120
v. Appeal from the
Vanderburgh Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff. David D. Kiely, Judge
Trial Court Cause No.
82C01-1804-F3-2506
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1120 | March 6, 2020 Page 1 of 10
[1] Following his convictions for sexual battery1 as a Level 6 felony and battery
resulting in injury2 as a Level 5 felony, Charles E. Johnson, Jr. (“Johnson”) was
sentenced to concurrent sentences of two-and-a-half years and six years,
resulting in an aggregate sentence of six years. Contending his sentence is
inappropriate, he now appeals.
[2] We affirm.
Facts and Procedural History
[3] Since 2012, Johnson and T.Z. had been in an on-and-off romantic relationship.
On April 5, 2018, T.Z. and Johnson made plans for Johnson to pick her up and
take her to his home. They had been in an “off” stage of their relationship, but
T.Z. believed that she and Johnson would be discussing whether they should
resume their relationship.
[4] Johnson picked up T.Z. and drove her to his home. There, both went to the
bedroom, and Johnson sat down and turned on pornography. T.Z. sat on the
bed and attempted to fall asleep.
[5] T.Z. fell asleep for a moment, but Johnson woke her up by tapping her on the
shoulder and stating, “Come over here and get me hard.” Tr. Vol. 2 at 34-35.
T.Z. told Johnson “no” and attempted to get up and grab her bag so she could
1
See Ind. Code § 35-42-4-8.
2
See Ind. Code § 35-42-2-1.
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leave. Id. at 35. Johnson struck T.Z. in the eye with his fist, fracturing her eye
socket. Id. at 14, 35. He told T.Z. “that [she] wasn’t gonna leave. That [she]
was gonna do what he said.” Id. at 35.
[6] T.Z. stopped fighting back and began to remove her clothes because Johnson
told her to do so. Johnson attempted to have intercourse with T.Z., but his
penis was not erect, and he could not insert it. He ordered T.Z. to perform oral
sex on him, but T.Z. could not comply because her face was too swollen from
Johnson’s punches. Johnson then dragged T.Z. by her neck into the center of
the room, wrapped a rag around the vacuum cleaner hose, secured the rag with
a condom and repeatedly shoved the vacuum cleaner hose into T.Z.’s vagina.
[7] T.Z. then attempted to leave, but Johnson grabbed her and began hitting the back of
her head against the steps. He then took T.Z. back to the bedroom and again tried to
have intercourse with her. He again punched her in the face and attempted to force
a pipe into her mouth, breaking her teeth in the process. T.Z.’s face was bleeding
profusely, and Johnson handed her a rag and told her to clean her face off with it.
After she wiped off the blood, Johnson again attempted to force T.Z. to perform
oral sex on him.
[8] Several hours passed, and in the early morning hours, T.Z. told Johnson that he had
to let her go because she had a probation appointment that morning. T.Z. drove
herself home, and her mother and grandfather drove her to the hospital to receive
treatment for her injuries.
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[9] After T.Z. reported her assault at the hospital, Johnson gave a statement to
Detective Stacy Spalding (“Detective Spalding”). He reported that he and T.Z. had
a romantic and sexual relationship and that he “treat her like scum, dog shit.” Tr.
Vol. 2 at 90. He also reported that he has told T.Z. that he will “kill [her]” and that
“anything [he] ask[s] for [she] better always be there[.]” Id. He told Detective
Spalding that T.Z. was “supposed to come through th[e] hallway takin’ her clothes
off,” and “[t]here’s no such thing as she doesn’t want it.” Id. at 92. Johnson also
told Detective Spalding that any time T.Z. came to his home, she was expected to
have intercourse and could not change her mind because “supply and demand, cash
and carry.” Id. at 114.
[10] On April 9, 2018, the State charged Johnson with Level 3 felony rape, Level 3
felony criminal confinement, Level 5 felony battery resulting in serious bodily
injury, and Level 6 felony strangulation. Appellant’s App. Vol. II at 45-46. After a
jury trial, Johnson was found guilty of Level 6 felony sexual battery, as a lesser
included offense of rape, and Level 5 felony battery resulting in serious bodily
injury. At sentencing, Johnson did not offer any mitigating circumstances for the
trial court’s consideration, asking only that the trial court make “a minute [entry]
regarding any DOC sentence [requesting] . . . some form of substance abuse
treatment or evaluation as soon as he arrives.” Tr. Vol. 2 at 168. In addition to the
executed sentence, the State requested restitution for T.Z.’s medical bills including
$7,214 to cover the out-of-pocket portion of her medical bills for her fractured eye
socket and the laceration in her eyebrow that Johnson had caused. Id. at 169. In
addition, the State requested additional restitution of $5,786 to cover the expense of
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fixing T.Z.’s broken teeth which T.Z. had not been able to get fixed at the time of
sentencing because she could not afford it. Id. at 169-70.
[11] The trial court did not address the restitution request in its sentencing order. The
trial court stated that it found Johnson’s criminal history, which crossed state lines
and included a federal weapons offense, to be an aggravating circumstance. Id. at
170-71. The court sentenced Johnson to six years for his Level 5 felony conviction
and two-and-a-half years for his Level 6 felony conviction and ordered the
sentences to run concurrently to each other for an aggregate sentence of six years
executed. Id. at 171. Johnson now appeals.
Discussion and Decision
[12] An appellate court may revise a statutorily authorized sentence if “after due
consideration of the trial court’s decision,” the court finds the sentence imposed
to be inappropriate in light of the nature of the offense and the character of the
offender. Ind. Appellate Rule 7(B). The principal role of appellate review is to
“leaven the outliers” and not to achieve a perceived “correct” result. Cardwell v.
State, 895 N.E.2d 1219, 1225 (Ind. 2008); Howell v. State, 97 N.E.3d 253, 271
(Ind. Ct. App. 2018). The question on appeal is “whether the sentence imposed
is inappropriate,” not whether a different sentence would be a better result.
King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).
[13] The trial court’s sentencing decision will stand “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). The burden is
on Johnson to persuade the court that his sentence is inappropriate as to both
the nature of his offense and his character. Childress v. State, 848 N.E.2d 1073,
1080 (Ind. 2006); Wheeler v. State, 95 N.E.3d 149, 160 (Ind. Ct. App. 2018).
[14] Johnson argues that his six-year aggregate sentence is inappropriate in light of
the nature of the offense and the character of the offender. He first asserts that
the trial court erred in failing to find any mitigating factors, claiming that the
trial court did not consider any mitigating factors like his prior drug habits and
addictions. He also contends that although he had a prior criminal history, he
should not have been sentenced to the maximum because he is not the “worst
of the worst offenders,” especially when his criminal history shows that he has
severe issues with narcotics. Appellant’s Br. at 11. Johnson further claims that,
as to the nature of the offense, the injuries sustained are ones that, as shown in
the restitution requested, can be remedied.
[15] In determining whether a sentence is appropriate as to the nature of the offense,
the starting point is the advisory sentence. Abbott v. State, 961 N.E.2d 1016,
1019 (Ind. 2012). Generally, the maximum sentence is given to the “worst of
the worst” offenses. Hamilton v. State, 955 N.E.2d 723, 727 (Ind. 2011). For his
Level 5 felony conviction, Johnson faced a sentencing range of one to six years
with an advisory sentence of three years. See Ind. Code § 35-50-2-6(b). For his
Level 6 felony conviction, Johnson faced a sentencing range of six months to
two-and-a-half years with an advisory sentence of one year. See Ind. Code § 35-
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50-2-7(b). For his two offenses, Johnson faced a maximum aggregate sentence
of eight-and-a-half years. The trial court gave Johnson the maximum sentence
for each individual offense but ran the sentences concurrently for a below-the-
maximum aggregate sentence of only six years. He was, therefore, not
sentenced to the maximum.
[16] As this court has recognized, the nature of the offense is found in the details
and circumstances of the commission of the offense and the defendant’s
participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). “When
determining the appropriateness of a sentence that deviates from an advisory
sentence, we consider whether there is anything more or less egregious about
the offense as committed by the defendant that ‘makes it different from the
typical offense accounted for by the legislature when it set the advisory
sentence.’” Moyer v. State, 83 N.E.3d 136, 142 (Ind. Ct. App. 2017) (quoting
Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011)), trans. denied. In
the present case, the nature of Johnson’s offense was egregious. He fractured
T.Z.’s eye socket, caused a laceration to her eyebrow, cracked four of her teeth
in half, and repeatedly shoved a vacuum cleaner inside of her vagina. Johnson
had carried on his relationship with T.Z. for several years during which he
treated her like “scum, dog shit.” Tr. Vol. 2 at 90. From his perspective, once
he has begun a sexual relationship with a woman such as T.Z., the concept of
consent no longer existed. Johnson repeatedly attempted to force a woman to
perform oral sex on and have intercourse with him. When she would not
comply, he punched her in the face resulting in a fracture and permanent
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damage to her eye socket. He then penetrated T.Z.’s vagina repeatedly with a
vacuum cleaner hose and forced a pipe between T.Z.’s teeth breaking four of
them in half. Johnson was convicted of one count of battery resulting in serious
bodily injury, but he caused two serious injuries: one to T.Z.’s eye socket and
the other to her teeth. Because of these injuries, T.Z. will incur thousands in
medical bills to get her teeth fixed. He also put T.Z. through the emotional
trauma of having someone she loves repeatedly violate her with a foreign
object. His sentence is not inappropriate in light of the nature of his offenses.
[17] The character of the offender is found in what we learn of the offender’s life and
conduct. Perry, 78 N.E.3d at 13. When considering the character of the
offender, one relevant fact is the defendant’s criminal history. Johnson v. State,
986 N.E.2d 852, 857 (Ind. Ct. App. 2013). Initially, Johnson argues that the
trial court refused to consider any mitigating factors like his prior drug habits
and addictions. However, Johnson did not argue for any mitigating
circumstances at sentencing, and, on appeal, he has failed to provide a cogent
argument on this issue. Lee v. State, 91 N.E.3d 978, 990-91 (Ind. Ct. App. 2017)
(citing Ind. Appellate Rule 46(A)(8)(a)). He does not cite to any portion of the
record, does not include the standard of review, and does not cite to any legal
authority except for the statute listing possible mitigating circumstances.
[18] As to his character, Johnson has a lengthy criminal history which includes
offenses in Illinois, Kentucky, Indiana, and a federal weapons offense. He was
on pretrial release for another felony charge in Daviess County when he
committed the present offenses. Any criminal record reflects poorly on a
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defendant’s character because it demonstrates that a defendant has not been
deterred “even after having been subject to the police authority of the State.”
Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005); Rutherford v. State, 866 N.E.2d
867, 874 (Ind. Ct. App. 2007). Additionally, the record contains no expression
of remorse from Johnson toward a woman with whom he carried on a six-year
romantic relationship. This does not reflect positively on his character.
[19] Johnson argues that “a review of the criminal history and information
contained within the PSI indicates” that he is an “individual that has a severe
issue with narcotics, has a history of abusing alcohol and drugs, and would
benefit from treatment.” Appellant’s Br. at 11. However, at least some of these
claims are not true. Johnson stated during his presentence investigation
interview that he had not consumed alcohol since 2009 and had not used
marijuana since 2001. Appellant’s Conf. App. Vol. II at 210. He also stated that
he had not used any other drug for at least a month prior to his arrest, with his
last use of methamphetamine occurring about one month prior, and his last use
of synthetic cannabinoids being at least six months prior to his arrest. Id.
Based on the evidence, Johnson’s sentence is not inappropriate in light of his
character.
[20] Johnson has the burden of establishing that his sentence in inappropriate in
light of both the nature of the offenses and his character. See Childress, 848
N.E.2d at 1080. We conclude that Johnson has not met his burden.
[21] Affirmed.
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Bailey, J., and Mathias, J., concur
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