Nathaniel Jerome Asbury v. State of Indiana

Indianapolis, IN - Criminal defense attorney represented Defendant charged with a rape.

Alexis L. participated in a plan with Asbury, Isiah Barboza, and Elias Costello

to rob the home of her stepmother, L.L. She drew a map of the house to show

the men its floorplan, where the different rooms were located, and where

certain items such as a camera, money, and jewelry would be located and gave

them a key to the front door. On July 16, 2018, Alexis drove Asbury, Barboza,

and Costello to L.L.'s house. Alexis's family shared their locations with each

other using their phones, and Alexis knew that most likely her sister F.H. and

sixteen-year-old brother A.H. were at the house at the time. F.H. was asleep on

the couch in the living room, and A.H. was asleep upstairs in his bedroom.

[3] Alexis stayed outside in a back alley, and Asbury and the other two men

entered the house. Asbury carried a shotgun wrapped in a pair of jeans into the

house and wore gloves and a knit hat with the eyes cut out which was pulled

completely over his head. The men surrounded F.H. and covered her head

with a pillow. Asbury pointed the shotgun at F.H. while the other men

separated to burglarize the home. The men returned to the living room and

assaulted F.H. Costello groped her breasts, smacked her on the buttocks, and

held her down. Asbury forced F.H. to perform oral sex on him and raped her

vaginally. Barboza also raped F.H. The men took turns holding the shotgun.

Meanwhile, A.H. called L.L. from his bedroom, and L.L. observed the men in

her house and the assault on F.H. by means of a home security camera and Court of Appeals of Indiana | Memorandum Decision 20A-CR-2338 | June 28, 2021 Page 3 of 10

called the police. The police arrived at the house, F.H. ran out the front door,

and the police apprehended Asbury at the scene.

[4] The State charged Asbury as amended with: Count I, rape as a level 1 felony1

;

Count II, rape as a level 1 felony; Count III, burglary as a level 2 felony2

; Count

IV, armed robbery as a level 3 felony; Count V, criminal confinement as a level

3 felony; Count VI, intimidation as a level 5 felony; Count VII, pointing a

firearm as a level 6 felony; Count VIII, resisting law enforcement as a class A

misdemeanor; Count IX, rape as a level 3 felony; Count X, rape as a level 3

felony; Count XI, burglary as a level 4 felony; Count XII, criminal confinement

as a level 6 felony; and Count XIII, residential entry as a level 6 felony, and it

alleged he used a firearm in the commission of Count V.

[5] On October 9, 2020, a Stipulated Plea and Agreement was filed which provided

that Asbury would plead guilty to Counts I and III, the State would dismiss the

remaining counts, the parties were free to argue their respective positions as to

sentencing and they agreed there would be a cap of sixty years and a floor of

twenty years on the total sentence. The plea agreement included an attached

Stipulated Factual Basis, which provided in part that the three men took turns

1 Count I alleged that Asbury "did knowingly or intentionally have sexual intercourse or other sexual

conduct with F.H., to wit: vaginal penetration, when F.H. was compelled by force or the imminent threat of

force” and Asbury "was armed with a deadly weapon, to wit: a shotgun.” Appellant's Appendix Volume II

at 75.

2 Count III alleged that Asbury "did break and enter the building or structure of L.L. to wit: a house, with the

intent to commit theft therein while armed with a deadly weapon, to wit: a shotgun.” Appellant's Appendix

Volume II at 75. Court of Appeals of Indiana | Memorandum Decision 20A-CR-2338 | June 28, 2021 Page 4 of 10

holding the shotgun while Asbury forced F.H. to perform oral sex on him and

raped her vaginally while threatening to shoot her and Barboza also vaginally

raped F.H.

[6] On October 14, 2020, Asbury pled guilty to Counts I and III pursuant to the

plea agreement. On November 20, 2020, the court held a sentencing hearing at

which it heard testimony from F.H., A.H., and L.L. The court also watched

and listened to the recording from L.L.'s home.

[7] F.H. testified "the fact this all happened because of my sister, broke me

emotionally and spiritually,” she was diagnosed with post-traumatic stress

disorder and gastrointestinal reflux disorder, she lost a lot of weight, she will

never be okay, and she faces extensive psychological issues. Transcript Volume

II at 19-20. She testified, "[w]hen I was held down on the couch, the only thing

that I could think of was my little brother A.H.” and "I told myself over and

over again, if I heard a gunshot from upstairs that I was 100 percent going to

die with him.” Id. at 20. She testified her post-traumatic stress disorder caused

her to be hospitalized and sedated and she lost count of the number of panic

attacks she had in the prior two and one-half years. She testified that she was

traumatized, that "having a gun to my head not knowing if I was going to live

or die will stick with me for the rest of my life,” and she will continue to need

therapy and medications. Id. at 21.

[8] A.H. testified regarding the impact of the home invasion and assault on F.H.

and the entire family and that F.H. was betrayed by her own family. L.L. Court of Appeals of Indiana | Memorandum Decision 20A-CR-2338 | June 28, 2021 Page 5 of 10

testified regarding F.H. and A.H.'s issues with anxiety. She testified that she

left F.H. and A.H. at home asleep when she went to work, it was their home

and they felt safe, the four perpetrators took that safe feeling of home away

from them, and she did not understand why they decided to rob the house

where Alexis had grown up. She testified that she believed the surveillance

camera saved her children's lives, and that watching her daughter be raped with

a shotgun to her head will always haunt her.

[9] Asbury apologized to the court, the victims, and their family and stated that he

took full responsibility for his actions, "I cannot put into words how sorry I am

that will honestly represent my sorriness to you F.H. and the family,” and "I

really apologize for all the everlasting trauma.” Id. at 140. The court stated:

"You're remorseful and have accepted responsibility. With everyone today, I

would say you sounded the most remorseful today.” Id. at 144. The court

stated "[t]he victim was begging not to be harmed,” "[s]he was sobbing, crying,

whimpering while the two of you repeatedly raped her,” "[y]ou had complete

disregard for her humanity and dignity, and you treated her like a piece of

meat.” Id. at 149.

[10] The court sentenced Asbury to thirty-five years for his conviction for rape as a

level 1 felony under Count I and twenty-five years for his conviction for

burglary as a level 2 felony under Count III and ordered that the sentences be

served consecutively. Court of Appeals of Indiana | Memorandum Decision 20A-CR-2338 | June 28, 2021 Page 6 of 10

Discussion

[11] The issue is whether Asbury's sentence is inappropriate in light of the nature of

his offenses and character. Ind. Appellate Rule 7(B) provides that we "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.” Under this rule, the

burden is on the defendant to persuade the appellate court that his or her

sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

[12] Asbury acknowledges the aggravated nature of his offenses but argues that he

had no prior history of violence and received the maximum sentence allowed

under the terms of his plea agreement. He contends that his sole prior

conviction was for a misdemeanor criminal trespass in 2016 and that "[t]his

lack of a violent history demonstrates that [his] conduct here, while heinous,

was in fact an aberration of his character rather than part of any identifiable

pattern of conduct.” Appellant's Brief at 8. He argues that he took

responsibility by pleading guilty to the top two counts for which he was

charged, the State dismissed the lesser included offenses stemming from the

same conduct, and he expressed sincere remorse. He asserts "[c]oupling [his]

lack of a violent background with his evident remorse for his actions in this

matter demonstrates that the offenses here are not in line with [his] true

character.” Id. at 9. He requests that this Court exercise its authority and

"reduce his sentence to a split term, contemplating Department of Corrections,

Lake County Community Corrections, and probation components.” Id. Court of Appeals of Indiana | Memorandum Decision 20A-CR-2338 | June 28, 2021 Page 7 of 10

[13] Ind. Code § 35-50-2-4 provides a person who commits a level 1 felony shall be

imprisoned for a fixed term of between twenty and forty years with the advisory

sentence being thirty years. Ind. Code § 35-50-2-4.5 provides a person who

commits a level 2 felony shall be imprisoned for a fixed term of between ten and

thirty years with the advisory sentence being seventeen and one-half years.

[14] Our review of the nature of the offenses reveals that Asbury, Barboza, and

Costello entered L.L.'s house while Alexis waited outside with the intent to

steal property and that he carried a shotgun wrapped in a pair of jeans and wore

gloves and a knit hat pulled completely over his head. Asbury pointed the

shotgun at F.H. while the other men separated to burglarize the home. Asbury

forced F.H. to perform oral sex on him and raped her vaginally. The men took

turns holding the shotgun. The court stated that F.H. almost suffocated. The

court stated that it had watched and listened to the recording, F.H. "was

begging not to be harmed,” she "was sobbing, crying, whimpering” while

Asbury raped her, and he "had complete disregard for her humanity and

dignity.” Transcript Volume II at 149. L.L. watched the assault in real time

through the surveillance camera, and A.H. was locked inside his room

throughout the prolonged assault. As a result of the home invasion and assault,

F.H. and A.H. were traumatized and suffer from anxiety. F.H. has suffered

from post-traumatic stress disorder and gastrointestinal reflux disorder, lost

weight, was hospitalized and sedated, and has suffered panic attacks.

[15] Our review of Asbury's character reveals that he pled guilty to rape and

burglary under Counts I and III pursuant to a plea agreement which provided Court of Appeals of Indiana | Memorandum Decision 20A-CR-2338 | June 28, 2021 Page 8 of 10

for a maximum aggregate sentence of sixty years and that the remaining counts

against him were dismissed. The court found that he was caught on tape

committing the crime, the odds of him prevailing at a trial were extremely

remote, and the only reasonable thing for him to do was to plead guilty to

minimize his punishment. Asbury expressed remorse at sentencing which the

court found to be sincere. According to the presentence investigation report

("PSI”), Asbury was born in March 1997 and had a conviction for criminal

trespass as a misdemeanor in May 2016 for which he was sentenced to 180 days

suspended to probation. The PSI further states that probation filed a petition in

April 2017, "Petition granted. 180 days LCJ,” and probation was closed

unsatisfactorily in February 2018. Appellant's Appendix Volume II at 137. It

also states Asbury was arrested on May 18, 2016, charged with disorderly

conduct and resisting law enforcement as misdemeanors, he received "180 days

LCJ, suspended . . . 6 months prosecution deferred, 40 hours community

service,” he "violated deferment with instant offense,” probation was closed

unsatisfactorily, and the cause was dismissed with prejudice. Id.

[16] The PSI also states: "During the defendant's time in the Lake County Jail, he

has had several jail write-ups. The defendant has had 5 rule violations, 5 room

violations, 1 inmate fight, 1 lock down violation, 1 smoke violation, and one

suicide precaution.” Id. at 136. At sentencing, the court heard testimony that

Asbury was implicated or being investigated for a burglary which occurred on

July 8, 2018, and which also involved Costello and Barboza. It also heard

testimony regarding Asbury and Costello making arrangements to smuggle Court of Appeals of Indiana | Memorandum Decision 20A-CR-2338 | June 28, 2021 Page 9 of 10

contraband into the jail and a hole which had been cut in the lower portion of a

window in Costello's cell. The PSI indicates that Asbury reported he had been

associated with a street gang in Illinois for all of his life. It provides that he

completed the eleventh grade, was suspended for fighting while attending

school, obtained a general equivalency diploma in Illinois in 2015, and was in

the process of enrollment at Lincoln University at the time of his arrest. He was

not employed at the time of the offenses and his last employment was with a

staffing service as a laborer from 2017 until 2018. With respect to substance

abuse, the PSI states Asbury first tried marijuana at age twelve, used it daily,

and last used it the day of his arrest; he began consuming alcohol at age sixteen,

consumed it at least twice weekly, and last consumed alcohol on the day of the

offenses; he began using Xanax once a week at age nineteen and last used it the

day of his arrest; and he has never enrolled in any substance abuse treatment.

The PSI also provides that Asbury's overall risk assessment score using the

Indiana Risk Assessment System places him in the very high risk to reoffend

category.

[17] After due consideration, and in light of the heinous nature of the offenses, we

conclude that Asbury has not sustained his burden of establishing that his

sentence for rape as a level 1 felony and burglary as a level 2 felony is

inappropriate in light of the nature of the offenses and his character.

For the foregoing reasons, we affirm Asbury’s sentence.