O'Connor v. State

1

Kyle J. O'Connor, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.

No. 22A-CR-2386

Court of Appeals of Indiana

April 13, 2023

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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Morgan Superior Court The Honorable Brian H Williams, Judge Trial Court Cause No. 55D02-2103-F4-446

ATTORNEY FOR APPELLANT Aaron J. Spolarich Bennett Boehning & Clary, LLP Lafayette, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Daylon L. Welliver Deputy Attorney General Indianapolis, Indiana

MEMORANDUM DECISION

TAVITAS, JUDGE.

Case Summary

[¶1] Kyle O'Connor appeals his sentence of three years, all executed in the Department of Correction ("DOC"), for his conviction for domestic battery resulting in bodily injury to a pregnant woman, a Level 5 felony. O'Connor argues that: (1) the trial court abused its discretion by failing to consider several sentencing mitigators; and (2) his sentence is inappropriate. We find that the trial court did not abuse its discretion and that O'Connor's sentence is not inappropriate. Accordingly, we affirm.

Issues

[¶2] O'Connor raises two issues on appeal, which we restate as:

I. Whether the trial court abused its discretion by declining to consider several sentencing mitigators.

II. Whether O'Connor's sentence is inappropriate.

Facts

[¶3] On the evening of March 29, 2021, O'Connor; his then-fiancee, Melinda Hickey; and two of O'Connor's children, K.O., age eight, and M.O., age three, were planning on setting up a tent and camping in O'Connor's yard. At the time, Hickey was three months pregnant with O'Connor's twins.

[¶4] O'Connor was drinking whiskey the entire evening and displaying erratic behavior. At approximately 9:00 p.m., as the family tried to set up the tent, O'Connor was having a "bad attitude," and Hickey slapped him in the face.

Tr. Vol. II p. 206. O'Connor and Hickey then had an argument inside the house during which O'Connor asked Hickey to leave the house, and Hickey pushed O'Connor. After the argument, Hickey went to the bedroom, and O'Connor went back outside. Shortly thereafter, O'Connor drove to the liquor store and returned with candy for the children and a bottle of whiskey.

[¶5] By approximately 10:00 p.m., O'Connor and Hickey had made progress setting up the tent, and the family was getting settled inside when it started raining. O'Connor stepped outside of the tent to fix the rain cover and, when he returned inside the tent, "steam [was] coming off of him" from being in the rain. Id. at 215. Hickey thought that O'Connor was smoking in the tent and slapped him in the face for the second time that evening.^[1] O'Connor again asked Hickey to leave the house, but she refused.

[¶6] At approximately midnight, Hickey and the children went to bed while O'Connor sat by the fire and continued to drink. Shortly after 3:00 a.m., O'Connor was "a little intoxicated and ready for bed" and went to his and Hickey's bedroom, but Hickey told him to sleep on the couch. Tr. Vol. III p. 161. O'Connor testified that Hickey also kicked him in the face as he tried to get into bed. O'Connor then "jumped across the bed and attacked" Hickey. Tr. Vol. II p. 224. Hickey testified that O'Connor strangled, punched, and bit her; held her head between his legs; and grabbed her hair. Hickey requested O'Connor to stop, and O'Connor responded, "[N]o b***h, I'll show you." Id. at 228.

[¶7] After several minutes, O'Connor released Hickey, who ran outside and told a neighbor that O'Connor attacked her. The neighbor called 911, and when the police arrived, Hickey was "frantic, panicked, crying, [and] kind of hysterical." Tr. Vol. III p. 78. Martinsville Police Department Officer Michelle Weaver testified that O'Connor "barricaded" himself inside the house and that, approximately one hour later, the police arrested O'Connor. Id. At 84. Hickey's injuries included a black eye, severe bruising to her entire body, and bite marks.

[¶8] On March 29, 2021, the State charged O'Connor with five counts: Count I, criminal confinement, a Level 4 felony; Count II, strangulation, a Level 5 felony; Count III, domestic battery resulting in bodily injury to a pregnant woman, a Level 5 felony; Count IV, resisting law enforcement, a Class A misdemeanor; and Count V, disorderly conduct, a Class B misdemeanor.

[¶9] The trial court held a jury trial in August 2022. O'Connor testified in his own defense and denied punching and strangling Hickey. O'Connor testified that Hickey scratched and punched him and that he "was just trying to hold [Hickey] to where she could not hurt [him or] herself." Id. at 151. The jury found O'Connor guilty of Counts III and V and not guilty of the remaining counts.

[¶10] On September 22, 2022, the State filed a Presentence Investigation ("PSI") report, which placed O'Connor in the moderate risk to reoffend category based primarily on his criminal attitude and behavioral patterns, criminal history, and substance abuse. The trial court held a sentencing hearing on September 29, 2022, and entered judgment of conviction on Count III, domestic battery resulting in bodily injury to a pregnant woman, a Level 5 felony.^[2]

[¶11] At the sentencing hearing, O'Connor advanced as mitigators, as relevant here: 1) the hardship to O'Connor's dependents; 2) O'Connor was unlikely to reoffend; 3) O'Connor would respond affirmatively to probation; and 4) O'Connor paid restitution to the victim. Regarding his hardship argument, O'Connor testified that he lives with M.O., whom he has custody over; along with his girlfriend; her son; and his mother and that his girlfriend was unable to provide for her son's or M.O.'s care. In a letter to the trial court, O'Connor's girlfriend stated that she is a supervisor at UPS where O'Connor works and that she and her son would be "homeless" without O'Connor's support. Ex. Vol. I p. 86. O'Connor further testified that he is gainfully employed and pays child support in the amount of $55 and $155 weekly for two of his other children, K.O. and Ke.O.; that he visits K.O. every other weekend during the school year and every other week during the summer; and that he was working on obtaining parenting time to visit Ke.O.

[¶12] The trial court found two aggravators: 1) O'Connor's criminal history, which consisted of four juvenile adjudications, including two for battery, and two adult misdemeanor convictions for possession of paraphernalia and possession of marijuana; ^[3] and 2) the offense was committed within hearing range of M.O.^[4] The trial court explained that the second aggravator was "the most compelling of the two." Tr. Vol. III p. 234. In addition, the trial court found as mitigating that O'Connor paid restitution and found that the aggravators and mitigators were "essentially equal." Id. at 236. The trial court further found that Hickey "probably did instigate" the offense by kicking O'Connor but that Hickey's conduct did not "excuse" O'Connor's response. Id. at 235. The trial court sentenced O'Connor to the advisory sentence of three years, all executed in the DOC. O'Connor now appeals.

Discussion and Decision

I. Abuse of Discretion-Sentencing

[¶13] O'Connor first argues that the trial court abused its discretion by failing to find three mitigators: 1) the hardship to O'Connor's dependents; 2) O'Connor was unlikely to reoffend; and 3) O'Connor would respond affirmatively to probation. We disagree.

[¶14] Sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007); Phipps v. State, 90 N.E.3d 1190, 1197 (Ind. 2018). "An abuse occurs only 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." Schuler v. State, 132 N.E.3d 903, 904 (Ind. 2019) (citing Rice v. State, 6 N.E.3d 940, 943 (Ind. 2014)).

[¶15] A trial court abuses its discretion in a number of ways, including:

(1) "failing to enter a sentencing statement at all"; (2) entering a sentencing statement in which the aggravating and mitigating factors are not supported by the record; (3) entering a sentencing statement that does not include reasons that are clearly supported by the record and advanced for consideration; or (4) entering a sentencing statement in which the reasons provided in the statement are "improper as a matter of law."

Ackerman v. State, 51 N.E.3d 171, 193 (Ind. 2016) (quoting Anglemyer, 868 N.E.2d at 490-91), cert. denied.

[¶16] The trial court "'is not obligated to accept the defendant's contentions as to what constitutes a mitigating circumstance or to give the proffered mitigating circumstances the same weight the defendant does.'" Weisheit v. State, 26 N.E.3d 3, 9 (Ind. 2015) (quoting Wilkes v. State, 917 N.E.2d 675, 690 (Ind. 2009), cert. denied), cert. denied. "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." Anglemyer, 868 N.E.2d at 493 (citing Carter v. State, 711 N.E.2d 835, 838 (Ind. 1999)).

A. Hardship

[¶17] Trial courts are permitted to find as mitigating the hardship to a defendant's dependents. See Ind. Code § 35-38-1-7.1(b)(10). We have explained, however, that "[m]any persons convicted of serious crimes have one or more children and, absent special circumstances, trial courts are not required to find that imprisonment will result in an undue hardship."...