MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be May 13 2020, 7:06 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald J. Frew Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Samantha M. Sumcad
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marvin J. Davis, May 13, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2505
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D05-1809-F3-57
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2505 | May 13, 2020 Page 1 of 5
Case Summary
[1] Marvin Davis (“Davis”) was convicted of Level 3 felony rape 1 and Level 6
felony sexual battery2 following a jury trial. He appeals his fifteen-year sentence
asserting that his sentence is inappropriate in light of the nature of the offenses
and his character. We affirm.
Facts and Procedural History
[2] On July 17, 2018, Davis’s friend Camille was with her daughter, P.H., when
they made a stop at Davis’s home. When Davis met Camille’s daughter he
said, “Wow, how old are you?” She replied, “Sixteen.” Davis asked if she had
any hobbies and then quickly followed with an offer to help her get a coaching
position on the cheerleading team at the middle school.
[3] Because P.H. was interested, the next day Davis decided to drive her to Metro
field to meet with the woman involved in the cheerleading program. On their
way to Metro field, Davis told P.H. that he had to stop at his house to get some
papers he had forgotten. When they arrived at Davis’s home he invited P.H.
inside for a glass of water. As they entered, Davis asked P.H. if she had ever
been with an older man, telling her that he could show her how. Davis then
closed the door and pushed P.H. against it. Davis used his right arm to hold
1
Ind. Code § 35-42-4-1.
2
I.C. § 35-42-4-8.
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her neck against the door and his other hand to pull down P.H.’s pants and
proceeded to rape her. P.H. continuously asked Davis to stop and attempted to
fight him off, but Davis told her to shut up and put his hand over her mouth.
When Davis finished raping P.H., he dropped her off at her friend’s house.
Later it was also determined that the cheerleading program that Davis offered
P.H. did not exist.
[4] On August 29, 2019, a judgment of conviction was entered after a jury found
Davis guilty on Count I Level 3 felony rape and Count II Level 6 felony sexual
battery. At the sentencing hearing, Davis was sentenced to fifteen years on
Count I and two years on Count II with both sentences running concurrently.
Davis now appeals.
Discussion and Decision
[5] Davis contends that his sentence is inappropriate. Article 7, Sections 4 and 6 of
the Indiana Constitution authorize independent appellate review and revision
of a sentence imposed by a trial court. See, e.g., Sanders v. State, 71 N.E.3d 839,
843 (Ind. Ct. App. 2017), trans. denied. This appellate authority is embodied in
Indiana Appellate Rule 7(B). Id. Under 7(B), the appellant must demonstrate
that his sentence is inappropriate in light of the nature of his offense and his
character. Id. (citing Ind. Appellate Rule 7(B)). In these instances, deference to
the trial courts “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 character (such as
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substantial virtuous traits or persistent examples of good character).” Stephenson
v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[6] The Indiana Supreme Court has explained that the principal role of appellate
review is an 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). The
question is not whether another sentence is more appropriate, but whether the
sentence imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct.
App. 2008).
[7] A defendant convicted of a Level 3 felony is subject to a sentencing range of
three to sixteen years. I.C. § 35-50-2-5(b). Davis received a fifteen-year
sentence for his crimes. He contends that the nature of the offense and his
character do not support his fifteen-year sentence for rape. An analysis under
the auspices of Rule 7(B) suggests otherwise.
[8] First, we look to the nature of the offense. Under the guise of being friends with
the victim’s mother and assisting the victim with securing a position as a
cheerleading coach, Davis lured this young girl into his car and drove her to his
house. There Davis used brute force to rape her.
[9] Next, we consider the defendant’s character. Davis has an extensive criminal
history consisting of eight prior convictions as an adult. Furthermore, Davis
used deception to perpetrate his well-thought-out plan which connotes an
absence of any “restraint.” Stephenson, 29 N.E.3d at 122.
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[10] In the final analysis, Davis has wholly failed to present any evidence, let alone
compelling evidence, that portrays in a positive light the nature of the offense
and his character. Absent such evidence, we are unpersuaded that his sentence
is inappropriate.
[11] Affirmed.
Crone, J., and Altice, J., concur.
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