Opinion
22A-CR-2123
05-11-2023
Timothy Rodgers, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT Brian A. Karle Ball Eggleston, PC Lafayette, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Erica S. Sullivan Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Cynthia L. Oetjen, Judge Trial Court Cause No. 49D30-1910-F1-38809
ATTORNEY FOR APPELLANT Brian A. Karle Ball Eggleston, PC Lafayette, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Erica S. Sullivan Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Riley, Judge.
STATEMENT OF THE CASE
[¶1] Appellant-Defendant, Timothy K. Rodgers (Rodgers), appeals his sentence for aggravated battery, a Level 3 felony, Ind. Code § 35-42-2-1.5(2).
[¶2] We affirm.
ISSUE
[¶3] Rodgers presents this court with one issue on appeal, which we restate as: Whether the trial court abused its discretion in sentencing him to nine years, with three years suspended for aggravated battery.
FACTS AND PROCEDURAL HISTORY
[¶4] On September 22, 2019, approximately a dozen men, including Rodgers, gathered for a bachelor party at the residence of Damien Highwood (Highwood). Together they travelled to a bar in downtown Indianapolis, attended two strip clubs, and returned to Highwood's house around 2:00 a.m. Several of the men drank heavily and used various controlled substances throughout the night.
[¶5] After returning to Highwood's residence, Rodgers and Highwood got into an argument on the street in front of the house. Highwood was brandishing a handgun Rodgers had previously left inside Highwood's residence and pointed it at Rodgers. In Rodgers' attempt to grab the gun, the two men started to struggle, and the handgun discharged one round that struck Highwood in the face and neck. Another participant of the bachelor party took Highwood to the hospital.
[¶6] Meanwhile, Rodgers entered the residence, where several individuals were still present in various areas of the home. Michael Souder (Souder), who resided in Highwood's home and who had participated in the bachelor party, was upstairs in his room after returning home. Souder heard the argument between Highwood and Rodgers, as well as the "pop" from the gunshot. (Transcript Vol. II, p. 82). When he noticed that Highwood had been shot, Souder went to the bedroom occupied by Highwood and his fiancee, Jamie Kepler (Kepler). Inside the bedroom's closet, Souder retrieved Highwood's AK-47. Souder shut the bedroom door and positioned himself with the gun inside the bedroom near the closet and behind a blanket that separated the bathroom from the bedroom.
[¶7] Souder heard Rodgers break open the bedroom door and yell profanities at Kepler. (Tr. Vol. III, p. 87). When Rodgers pulled back the blanket in the doorway to the bathroom, Rodgers noticed Souder pointing the AK-47 at him. Rodgers shot Souder six or seven times. Souder was struck in the arm, with a bullet grazing his forearm, piercing his bicep, shattering his humerus, and exiting below the shoulder. Another bullet passed through Souder's cellphone, went into his leg, and left a chemical burn on his leg. A twelve-inch plate and nine screws were inserted into Souder's left arm and he was treated in the burn unit for the chemical burn on his leg. At the time of trial, Souder was unable to perform a full rotation with his hand and had nerve damage from the radial nerve at the top of his thumb to his elbow.
[¶8] On October 3, 2019, the State filed an Information, charging Rodgers with Count I, attempted murder of Highwood, a Level 1 felony; Count II, aggravated battery against Highwood, a Level 3 felony; Count III, attempted murder of Souder, a Level 1 felony; and Count IV, aggravated battery against Souder, a Level 3 felony. On June 27 and 28, 2022, the trial court conducted a jury trial. During the trial, Rodgers testified and maintained that he acted in self-defense. At the close of the evidence, the jury found Rodgers guilty of Count IV, and not guilty of Counts I through III.
[¶9] On August 10, 2022, the trial court conducted a sentencing hearing. During the proceeding, the trial court noted,
So as aggravating, I will find the harm, injury or loss suffered by the victim of the offense was significant and greater than the elements necessary to prove the offense. And from the testimony at trial, it's quite clear that [Souder] still suffered from those effects - the arm and the leg injuries - and I believe they're still -there was still a surgery that had to go on.
[¶10] (Tr. Vol. III, p. 226). In addition, the trial court also found Rodgers' criminal history to be an aggravating circumstance. Concluding that the aggravators outweighed the mitigators, the trial court sentenced Rodgers to the advisory sentence of nine years, with three years suspended to probation.
[¶11] Rodgers now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION
[¶12] Rodgers contends that the trial court abused its discretion by identifying the "harm, injury, or loss suffered" as an aggravating circumstance because it constituted an element of the offense of aggravated battery.
[¶13] Sentencing decisions rest within the sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007). So long as the sentence is within the statutory range, it is subject to review only for an abuse of discretion. Id. An abuse of discretion will be found where 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: (1) failing to enter a sentencing statement at all; (2) entering a sentencing statement that includes aggravating and mitigating factors that are unsupported by the record; (3) entering a sentencing statement that omits reasons that are clearly supported by the record; or (4) entering a sentencing statement that includes reasons that are improper as a matter of law. Id. at 490-91. A trial court is not required to issue a sentencing statement when it imposes the advisory sentence. Ward v. State, 113 N.E.3d 1242, 1243 (Ind.Ct.App. 2018); I.C. § 35-38-1-1.3. This court will not remand for resentencing even if error is found if it can "say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record." Anglemyer, 868 N.E.2d at 491.
[¶14] Rodgers was convicted of Level 3 felony aggravated battery. The sentencing range for a Level 3 felony is six to thirteen years, with an advisory sentence of nine years. I.C. § 35-50-2-5(b). The trial court sentenced Rodgers to the advisory sentence and suspended three years. Although the trial court was not required to issue a sentencing statement, Rodgers argues that because the trial court issued a sentencing statement, it abused its discretion by supporting his sentence based on an improper aggravator of injury to the victim, as it merely recited the elements of the offense.
[¶15] Aggravated battery is defined as "knowingly or intentionally inflict[ing] injury on a person that creates a substantial risk of death or causes . . . (2) protracted loss or impairment of the function of a bodily member or organ". I.C. § 35-422- 1.5(2). While a court cannot rely on the material elements of the offense alone, "the trial court may properly consider the particularized circumstances of the material elements of the crime." Kien v. State, 782 N.E.2d 398, 414 (Ind.Ct.App. 2003).
[¶16] In acknowledging Souder's "testimony at trial," the trial court referenced the "harm, injury or loss" suffered by Souder as "greater than the elements necessary to prove the offense." (Tr. Vol. III, p. 226). The evidence presented at trial reflects that Rodgers shot Souder six or seven times, with Souder enduring injuries to his arm and neck, which in turn have created neck and back injuries. Souder underwent extensive medical care and surgeries for his injuries. Based on the testimony describing the extensive and debilitating injuries, the trial court reasonably inferred that Souder would need continual medical care or surgeries. We conclude that the court considered the injuries not as material elements of the crime but as the particularized nature and circumstances of the offense. Consequently, we cannot say that the trial court abused its discretion. See Caraway v. State, 959 N.E.2d 847, 850 (Ind.Ct.App. 2011) (holding that the trial court did not abuse its discretion by considering the nature and circumstances of the offense as an aggravator under I.C. § 35-38-17.1 where the victim was shot seven times), trans. denied.
CONCLUSION
[¶17] Based on the facts before us, we hold that the trial court did not abuse its discretion in sentencing Rodgers.
[¶18] Affirmed.
[¶19] Altice, C. J. and Pyle, J. concur