MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Aug 09 2017, 6:47 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jane Ann Noblitt Curtis T. Hill, Jr.
Columbus, Indiana Attorney General of Indiana
Tyler G. Banks
Richard Carey Webster
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher O. May, August 9, 2017
Appellant-Defendant, Court of Appeals Case No.
03A01-1610-CR-2384
v. Appeal from the Bartholomew
Superior Court
State of Indiana, The Honorable James D. Worton,
Appellee-Plaintiff Judge
Trial Court Cause No.
03D01-1603-F5-1299
May, Judge.
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[1] Christopher O. May appeals his seven-year aggregate sentence for his
convictions of Level 5 felony battery against a public safety official, 1 Class A
misdemeanor resisting law enforcement, 2 and Class B misdemeanor criminal
recklessness. 3 May argues his sentence is inappropriate in light of the nature of
his offenses and his character. We affirm.
Facts and Procedural History
[2] On February 27, 2016, Officer James Frederick of the Columbus Police
Department received information that multiple callers had reported a truck
driving dangerously on the roadway. Officer Frederick proceeded to the area to
investigate, and he eventually arrived at a crash scene. A truck, driven by May,
had crashed into another car, and May was outside the crashed truck, flailing
his arms around, and “appeared to be holding a stun gun.” (App. Vol. II at 13.)
[3] Officer Frederick initially held May at gunpoint and ordered him to the ground.
May did not comply. Instead, he looked at Officer Frederick and asked if
Officer Frederick’s gun was real. Officer Frederick switched from his firearm to
his Taser. The first attempt to subdue May with the Taser was unsuccessful
because the probes failed to penetrate May’s body. May approached Officer
Frederick, “activated his stun gun, and [Officer Frederick] could hear the
1
Ind. Code § 35-42-2-1(b)(1) & (f)(5)(A) (2014).
2
Ind. Code § 35-44.1-3-1(a)(1) (2014).
3
Ind. Code § 35-42-2-2(a) (2014).
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electric current.” (Id.) Officer Frederick managed to reload his Taser and
deploy it a second time at May. This time, May fell to the ground, and another
officer who had arrived at the scene helped handcuff May.
[4] The police took May to the hospital to have his blood drawn pursuant to a
search warrant. Officer Ben Quesenbery read the search warrant to May.
Officer Quesenbery was in May’s hospital room with two other officers and
medical staff. Officer Quesenbery was in the process of searching May for
weapons when May kicked Officer Quesenbery in the neck. Officer
Quesenbery testified the kick was “extremely painful,” (Tr. at 35), and although
he did not have any bruising, he had “a very sore and stiff neck the next day.”
(Id. at 36.)
[5] May was charged with Level 5 felony battery against a public safety official,
Level 6 felony intimidation, 4 Class A misdemeanor operating a vehicle while
intoxicated endangering a person, 5 Class A misdemeanor operating a motor
vehicle without ever receiving a driver’s license, 6 Class A misdemeanor resisting
law enforcement, and Class B misdemeanor criminal recklessness. May was
offered, and accepted, a plea agreement. The plea agreement provided the
4
Ind. Code § 35-45-2-1 (2014).
5
Ind. Code § 9-30-5-2 (2001).
6
Ind. Code § 9-24-18-1 (2015). Operating a motor vehicle without ever receiving a driver’s license is defined
as a Class C misdemeanor. Ind. Code § 9-24-18-1. However, the crime becomes a Class A misdemeanor
when a defendant already has a prior unrelated conviction of operating without ever receiving a license, and
May had a prior conviction.
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Court would recommend May’s placement in the Purposeful Incarceration
Program and indicated May understood he could be sentenced within the
statutory range for each offense.
[6] May pled guilty to Level 5 felony battery, Class A misdemeanor resisting law
enforcement, and Class B misdemeanor criminal recklessness in exchange for
dismissal of the other three charges. The court sentenced May to six years for
battery, one year for resisting law enforcement, and 180 days for criminal
recklessness. The resisting law enforcement and criminal recklessness sentences
were ordered served concurrent to one another and consecutive to the battery
sentence, for an aggregate sentence of seven years.
Discussion and Decision
[7] May argues his seven-year sentence is inappropriate under Indiana Appellate
Rule 7(B). Under this rule, we may revise a sentence if, after due consideration
of the trial court’s decision, we find the sentence inappropriate in light of the
nature of the offense and the character of the offender. Williams v. State, 891
N.E.2d 621, 633 (Ind. Ct. App. 2008). Our review is deferential to the trial
court’s decision, and our goal is to determine whether the defendant’s sentence
is inappropriate, not whether some other sentence would be more appropriate.
Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012), reh’g denied. The appellant
bears the burden of demonstrating his sentence is inappropriate. Childress v.
State, 848 N.E.2d 1073, 1080 (Ind. 2006). In reviewing May’s sentence, we
“should focus on the forest – the aggregate sentence – rather than the trees” –
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the individual sentences. See Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). Whether a sentence is inappropriate depends on, “our sense of the
culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other factors that come to light in a given case.” Id. at 1224.
[8] When considering the nature of the offense, the advisory sentence is the starting
point to determine the appropriateness of a sentence. Anglemyer v. State, 868
N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007). The
advisory sentence for a Level 5 felony is three years, with a sentencing range
from one year to six years. Ind. Code § 35-50-2-6(b) (2014). “A person who
commits a Class A misdemeanor shall be imprisoned for a fixed term of not
more than one year.” Ind. Code § 35-50-3-2 (1977). A conviction of a Class B
misdemeanor carries a sentence of no more than 180 days. Ind. Code § 35-50-
3-3 (1977). We determine the appropriateness of a deviation from the advisory
sentence by reviewing whether there is anything about May’s offenses that
makes them different from the “typical” offenses accounted for by the
legislature when it set the advisory sentence. See Rich v. State, 890 N.E.2d 44,
54 (Ind. Ct. App. 2008), trans. denied.
[9] May received the maximum available sentence for each of his three convictions,
for an aggregate sentence of seven years. The trial court found the nature of his
battery conviction and “the harm, injury, loss or damage . . . to the [Officer] in
this case was significant and greater than the elements necessary to approve
[sic] the commission of the offense.” (Tr. at 45.) The trial court so found
because, while Officer Quesenbery did not suffer a permanent injury, offenses
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committed against police officers, such as the kick to the neck, “have a lot more
long-lasting [effect] to them psychologically [and] emotionally.” (Id.)
[10] May contends the nature of the battery offense for his kick to Officer
Quesenbery’s neck did not justify an enhanced sentence because it did not cause
the officer permanent damage. In support of this argument, May points us to
Indiana Code section 35-38-1-7.1(b)(1) (2015), which states the trial court, when
imposing a sentence, may consider that “the crime neither caused nor
threatened serious harm to persons or property, or the person did not
contemplate that it would do so.” However, the trial court did consider the
injury and whether it threatened serious harm to the officer. The trial court, in
its discretion, chose not to find a mitigator in the fact that Officer Quesenbery
did not suffer permanent injury, nor was the trial court required to so find. See
Shane v. State, 769 N.E.2d 1195, 1199 (Ind. Ct. App. 2002) (“a trial court is not
required to find mitigating factors or give them the same weight as the
defendant”). While May did not permanently injure Officer Quesenbery, May
caused injury when he battered Officer Quesenbery at the hospital, May failed
to follow Officer Frederick’s commands at the scene of the accident, and May
committed criminal recklessness by driving recklessly and causing a crash while
on methamphetamine and heroin. In light of May’s offenses, we cannot say a
seven-year sentence is inappropriate.
[11] Regarding May’s character, the pre-sentence investigation report shows May
has a long history of substance abuse. He has been consuming alcohol, using
inhalants, and smoking marijuana since the age of eight. At age twelve, May
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began using LSD, heroin, and methamphetamine. He stated he uses controlled
substances daily. May admitted he was on methamphetamine and heroin at the
time of the crash.
[12] “When considering the character of the offender, one relevant fact is the
defendant’s criminal history.” Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct.
App. 2015), trans. denied. The trial court found May’s long criminal history to
be significant, noting his criminal history includes “violence,” “felonies,” and
“crimes of dishonesty.” (Tr. at 44.) More specifically, his criminal history is
comprised of seven felony convictions and eight misdemeanor convictions for a
variety of offenses, such as theft, possession of controlled substances, criminal
mischief, carrying a handgun without a license, and conversion. May also had
three cases pending at the time of this sentencing, his probation had been
revoked in the past, and while in jail for these crimes, May engaged in
“indecent exposure, battery upon another person, [and] disorderly conduct.”
(Id. at 47.) Finally, May has been involved with a gang called the “Bloods” for
six years. (App. Vol. III at 11.)
[13] On appeal, May argues that while he does possess a lengthy criminal history, he
is remorseful for his past offenses, accepts responsibility for those offenses, and
recognizes his need for help in order to turn his life around. However, May’s
gang involvement, abuse of illegal substances, and failure to be rehabilitated by
numerous past legal consequences demonstrate his disregard for the law and the
appropriateness of more severe punishment. Thus, May has not demonstrated
his sentence is inappropriate based on his character and offenses. See Gracia v.
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State, 976 N.E.2d 85, 91 (Ind. Ct. App. 2012) (eight-year sentence not
inappropriate when defendant punched and kicked his arresting officers and
had an extensive criminal history), trans. denied.
Conclusion
[14] May has failed to demonstrate his sentence is inappropriate considering the
nature of his offenses and his character. Accordingly, we affirm.
[15] Affirmed.
Brown, J., and Pyle, J., concur.
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