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:
ATTORNEYS FOR APPELLEE:
DAVID M. PAYNE
Ryan & Payne
Marion, Indiana
GREGORY F. ZOELLER
Attorney General of Indiana
IAN McLEAN
Deputy Attorney General
Indianapolis, Indiana
FILED
Jul 28 2009, 8:58 am
IN THE
COURT OF APPEALS OF INDIANA
RANDALL K. TURNER,
Appellant-Defendant,
vs.
STATE OF INDIANA,
Appellee-Plaintiff.
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No. 27A05-0812-CR-739
APPEAL FROM THE GRANT SUPERIOR COURT
The Honorable Randall L. Johnson, Judge
Cause No. 27D02-0807-FD-103
July 28, 2009
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
CLERK
of the supreme court,
court of appeals and
tax court
Randall Turner challenges his sentence for domestic battery, a class D felony. We
affirm.
At around 1:00 a.m. on July 9, 2008, Tiffany Turner, Turner’s pregnant wife, woke up
to the sound of him rummaging through clothes. Turner informed Tiffany that he was
leaving her, and an escalating argument ensued. When Tiffany tried to call her mother,
Turner tried to take her cell phone and began shoving Tiffany into the walls, forcing her to
the floor. Tiffany eventually relinquished the cell phone and reached for their baby, who had
begun crying. Turner then tried to take the baby from Tiffany, and when she resisted, forced
her to the bed. When Tiffany gave the baby to Turner, he punched her in the eye and then
picked up a book and began to strike Tiffany on the head with it as well. Eventually, Turner
fell asleep, and Tiffany took their baby and drove to her mother’s house.
On July 25, 2008, the State charged Turner with strangulation, domestic battery,
criminal confinement, and criminal mischief. On November 5, 2008, a jury found Turner
guilty of domestic battery and acquitted him of all the remaining charges. On November 24,
2008, the trial court sentenced Turner to three years in the Department of Correction with six
months suspended to probation. The trial court found several aggravating factors, including
Turner’s extensive criminal record and his statements to the probation officer that he had
used crack cocaine, powdered cocaine, and prescription medicine. The trial court found no
mitigating factors.
On appeal, Turner first contends that the trial court improperly failed to recognize
several mitigating factors. Sentencing decisions rest within the sound discretion of the trial
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court and are reviewed on appeal only for an abuse of discretion. Anglemeyer v. State, 868
N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. An abuse of discretion
occurs if 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. An allegation that the trial court failed to identify or find a mitigating factor requires the
defendant to establish that the mitigating evidence is both significant and clearly supported
by the record. Id. at 493.
Here, we cannot say that the trial court abused its discretion. First, Turner argues that
the trial court should have found that Tiffany was partly responsible for his offense.
Tiffany’s actions of waking up and resisting Turner’s attempts to take possession of her cell
phone and their baby did not induce or facilitate Turner’s decision to hit her with his fist and
a book. Second, Turner argues that his incarceration would impose undue hardship on his
children because they will be forced to receive public assistance. A trial court is not required
to find a defendant’s incarceration would result in undue hardship on his dependents. Davis
v. State, 835 N.E.2d 1102, 1116 (Ind. Ct. App. 2005), trans. denied. Many people convicted
of serious crimes have dependents and, absent special circumstances, trial courts are not
required to find that imprisonment will result in an undue hardship. Dowdell v. State, 720
N.E.2d 1146, 1154 (Ind. 1999). Given that alleviating familial distress is, in part, the purpose
of public assistance programs, Turner has demonstrated no special circumstances here.
Third, Turner argues that the offense was a product of circumstances unlikely to reoccur
because he has since divorced from Tiffany. Turner’s divorce is not dispositive of
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recidivism, and given that he committed the offense while on bond, and in light of his
previous criminal history, we cannot say the trial court abused its discretion in not finding
this to be a mitigating factor.
Turner also argues that his sentence is inappropriate pursuant to Indiana Appellate
Rule 7(B), which provides that this Court may revise a sentence authorized by statute if, after
due consideration of the trial court’s decision, we find that the sentence is inappropriate in
light of the nature of the offense and the character of the offender. The burden is on the
defendant to persuade us that the sentence is inappropriate. Anglemeyer, 868 N.E.2d at 494.
Here, the nature of the offense is serious. Turner not only punched a pregnant Tiffany
in the eye in front of his child, but he also picked up a book and continued to strike her on the
head. As for Turner’s character, he has a significant criminal history, indicating an inability
to lead a law-abiding life. Turner has been convicted of trespassing and possession of a
sawed-off shotgun, and he has several drug and alcohol convictions. Turner also committed
the present offense while on bond for a charge of dealing in cocaine. Further, Turner has
previously been shown leniency in the form of deferred prosecution and several periods of
probation, neither of which stopped him from battering Tiffany. In sum, Turner has failed to
persuade us that his sentence is inappropriate.
Affirmed.
MAY, J., and BROWN, J., concur.
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