      MEMORANDUM DECISION
                                                                          Feb 13 2015, 7:50 am
      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
      Ryan D. Bower                                             Gregory F. Zoeller
      Salem, Indiana                                            Attorney General of Indiana

                                                                Karl M. Scharnberg
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Jamie Lykins,                                            February 13, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               88A04-1408-CR-387
              v.                                               Appeal from the Washington Circuit
                                                               Court
                                                               The Honorable Larry W. Medlock,
      State of Indiana,                                        Judge
      Appellee-Plaintiff                                       Cause No. 88C01-1309-FA-641




      Bradford, Judge.



                                            Case Summary
[1]   On September 7, 2013, Appellant-Defendant Jamie Lykins physically assaulted

      an eight-month-old child resulting in the child’s death. Lykins pled guilty to




      Court of Appeals of Indiana | Memorandum Decision 88A04-1408-CR-387 | February 13, 2015    Page 1 of 9
      battery resulting in death and neglect of a dependent resulting in death, both

      Class A felonies. Lykins was sentenced to fifty years for the battery conviction

      and forty years for the neglect convction, both to be fully executed and to run

      concurrently, for an aggregate term of fifty years. Lykins contends that the trial

      court abused its discretion by considering improper aggravating factors and

      failing to consider certain mitigating factors. Lykins also argues that his

      sentence is inappropriate in light of the nature of the offense and his character.

      We affirm.



                            Facts and Procedural History
[2]   Lykins lived at his father’s house with his girlfriend, Casey Crain, and her eight-

      month-old son, L.C. On September 7, 2013, Lykins and Casey were planning

      to go fishing with Lykins’s cousin, Gregory Lee, and Lee’s girlfriend Michelle

      Livingston. Dawn Walker, another friend, was supposed to babysit L.C.

      overnight. Around 5:00 p.m., Lykins brought L.C. into the bedroom to put him

      down for a nap, closed the bedroom door, and turned on the radio to a high

      volume. Lykins then physically assaulted the child for approximately forty-five

      minutes until L.C. stopped crying and became unresponsive. The forensic

      pathologist identified signs of at least twelve separate impacts on L.C.’s head

      and seven impacts on the child’s torso and genitals. The pathologist’s official

      report listed twenty-nine separate injuries, twenty of which were to the head.


[3]   Around 7:00 p.m., Lee and Livingston arrived at the house. The group sat in

      the living room and talked about fishing while they were waiting for the




      Court of Appeals of Indiana | Memorandum Decision 88A04-1408-CR-387 | February 13, 2015   Page 2 of 9
      babysitter to arrive. At some point, Lykins mentioned that L.C. had rolled off

      the bed and hit his head. Lee and Livingston asked to see L.C. and, upon

      seeing him, immediately recognized that his injuries were severe and that he

      needed medical attention. L.C.’s head, face, and ear were purple from

      extensive bruising, he was struggling to breathe, and he did not appear to be

      conscious. Lee asked if Casey or Lykins had taken L.C. to get medical

      treatment and they responded that they had not as the injuries had occurred just

      thirty minutes earlier.


[4]   Around that time, Walker, the babysitter, arrived. While Lee and Livingston

      were outside, Lykins said to Walker, “We have a problem. I beat the f*** out

      of baby [L.C.].” Tr. p. 146. Lee attempted to convince the group to take the

      child to the hospital. Casey and Lykins were reluctant to go to the hospital

      because they were worried Child Protective Services would get involved. Lee

      ultimately convinced them to go and drove L.C., Casey, Lykins, and Livingston

      to the hospital. Lykins told the emergency room personnel and police that L.C.

      had fallen out of bed and hit his head. L.C. died at the hospital as a result of a

      subdural hematoma caused by multiple blunt force traumas to the head.


[5]   Lykins pled guilty to battery resulting in death and neglect of a dependent

      resulting in death, both Class A felonies. In the sentencing order, the trial court

      listed four statutory aggravating factors: (1) the harm, injury, loss, or damage

      suffered by the victim was significant and greater than the elements necessary to

      prove the commission of the offense; (2) Lykins was on bond when he

      committed the offense; (3) Lykins was in a position of care, custody, or control




      Court of Appeals of Indiana | Memorandum Decision 88A04-1408-CR-387 | February 13, 2015   Page 3 of 9
      of the victim; and (4) Lykins has a history of criminal behavior. At the

      sentencing hearing, the trial court also listed as an additional non-statutory

      aggravating factor, the fact that Lykins attempted to cover up his crime by lying

      to several individuals about how L.C.’s injuries occurred. The trial court found

      three mitigating factors: (1) Lykins had led a law-abiding life for a substantial

      period prior to committing the offense; (2) Lykins accepted responsibility for his

      actions via his guilty plea; and (3) Lykins appeared to be remorseful. Lykins

      was sentenced to fifty years for the battery conviction and forty years for the

      neglect of a dependent conviction. The sentences were imposed concurrently

      for an aggregate term of fifty years executed.



                                 Discussion and Decision
[6]   Lykins claims (1) that the trial court abused its discretion in crafting his

      sentence and (2) that the sentence is inappropriate in light of the nature of the

      offense and character of the offender.


                                      I. Abuse of Discretion
[7]                   As long as the sentence is within the statutory range, it is
              subject to review only for an abuse of discretion. Anglemyer v. State,
              868 N.E.2d 482, 490 (Ind. 2007), aff’d on reh’g, 875 N.E.2d 218 (Ind.
              2007). 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. One way in which a trial court may abuse its discretion
              is by failing to enter a sentencing statement at all. Id. Another
              example includes entering a sentencing statement that explains reasons
              for imposing a sentence, including aggravating and mitigating factors,
              which are not supported by the record. Id. at 490-91.




      Court of Appeals of Indiana | Memorandum Decision 88A04-1408-CR-387 | February 13, 2015   Page 4 of 9
                         Because the trial court no longer has any obligation to weigh
                 aggravating and mitigating factors against each other when imposing a
                 sentence, a trial court cannot now be said to have abused its discretion
                 by failing to properly weigh such factors. Id. at 491.


       Sharkey v. State, 967 N.E.2d 1074, 1078 (Ind. Ct. App. 2012).


[8]    Lykins claims that the trial court abused its discretion by considering as

       aggravating factors (1) that the harm, injury, loss, or damage suffered by the

       victim was significant and greater than the elements necessary to prove the

       commission of the offense, and (2) that Lykins was in a position of having care,

       custody, or control of the victim.


[9]    Indiana courts have held that a trial court may impose a sentence greater than

       the advisory sentence based on aggravating factors which are material elements

       of the offense so long as (1) the unique nature and circumstances of the crime

       justify the deviation, (Gomilla v. State, 13 N.E.3d 846, 852-53 (Ind. 2014)), and

       (2) the trial court provides something more than a generalized reference to those

       circumstances. Smith v. State, 872 N.E.2d 169, 179 (Ind. Ct. App. 2007), trans.

       denied.


[10]   To prove that Lykins committed battery resulting in death, the State was

       required to show that Lykins struck the victim in a rude, insolent, or angry

       manner and that the victim, who was under the age of fourteen, died as a result

       of the blow. Ind. Code § 35-42-2-1(a)(5). As discussed above, Lykins’s actions

       went far beyond merely striking the victim once, the minimum necessary to

       prove battery. Lykins struck the child at least twelve times in the head and




       Court of Appeals of Indiana | Memorandum Decision 88A04-1408-CR-387 | February 13, 2015   Page 5 of 9
       seven more times in the torso, back and genital areas, resulting in twenty-nine

       distinct, identifiable injuries. These actions do not indicate a momentary lapse

       in rationality and decency, rather; Lykins’s assault on the child lasted forty-five

       minutes. That level of sustained brutality indicates a fixed intent to inflict pain

       and suffering and marks a much more sinister offense.


[11]   The trial court highlighted the particularly egregious nature of Lykins’s offense

       in the following statements at the sentencing hearing:

               [O]ne of your witnesses indicated that this was an accident, but I
               noticed [defense counsel] did not argue that on [] your behalf. This
               was not an accident. It was a deliberate venting of anger or rage upon
               a little human that could not defend himself.
                                                   ***
               [T]here didn’t appear to be any remorse from what I could gather.
               There was deception, lies, and the evading of the truth. And more
               importantly, I think, the evading or the prevention of med– the
               immediate medical attention for [L.C.].
                                                   ***
               [A] child was lying there, trying to catch its breath, trying to live,
               trying to survive, and you were talking about fishing. And the images
               that we saw to the – the, the brutality of the beating that [L.C.]
               sustained is, is as your cousin would indicate, shocking. And [] I’ve
               been involved in numerous murder cases where people have done
               some pretty atrocious things to one another. Typically adults,
               typically people that at least had the opportunity to defend themselves
               … [or] invited bad things to happen to ‘em. But this child had no
               opportunity to invite anything bad to happen to him.


       Tr. Vol. IV pp. 30-34.


[12]   Lykins claims that the trial court improperly considered the young age of the

       victim as an aggravating factor. However, the Indiana Supreme Court has held




       Court of Appeals of Indiana | Memorandum Decision 88A04-1408-CR-387 | February 13, 2015   Page 6 of 9
       that “even where the age of the victim is an element of the offense, the very

       young age of a child can support an enhanced sentence as a particularized

       circumstance of the crime.” Kimbrough v. State, 979 N.E.2d 625, 628 (Ind.

       2012).


[13]   The trial court also properly found as an aggravating factor that Lykins had

       care, custody, or control over the victim. Lykins argues that because having

       care, custody, and control of a child is an element of the offense of neglect of a

       dependent, that the trial court erred by considering it an aggravating factor.

       However, “care, custody, or control” is not an element of battery resulting in

       death and, as such, the trial court did not err in considering it an aggravating

       factor as it relates to that offense. See Gomilla, 13 N.E.3d at 853 (the Supreme

       Court noted that although the sentencing court considered “fear” as an

       aggravating factor, an element of the charged offense of robbery, this was not

       inappropriate because the defendant was also charged with criminal deviate

       conduct, of which “fear” is not an element.)


[14]   Lykins also argues that the trial court erred by failing to recognize additional

       mitigating factors, such as his familial responsibilities to care and provide for

       his two sons. “When a defendant argues mitigating circumstances to the trial

       court, the sentencing judge is not obligated to explain why he has chosen not to

       make a finding of mitigation.” Hammons v. State, 493 N.E.2d 1250, 1254 (Ind.

       1986), reh’g denied; see also Espinoza v. State, 859 N.E.2d 375, 387 (Ind. Ct. App.

       2006). Lykins goes on to argue that the trial court did not properly weigh the

       Pre-Sentence Risk Assessment. However, arguments that the trial court did not




       Court of Appeals of Indiana | Memorandum Decision 88A04-1408-CR-387 | February 13, 2015   Page 7 of 9
       properly weigh the mitigating and aggravating factors is not a cognizable claim

       on appeal. As mentioned above, “a trial court cannot now be said to have

       abused its discretion by failing to properly weigh [aggravating and mitigating]

       factors.” Anglemyer, 868 N.E.2d at 491.


                              II. Appropriateness of Sentence
[15]   “Ind. Appellate Rule 7(B) empowers us to independently review and revise

       sentences authorized by statute if, after due consideration, we find the trial

       court’s decision inappropriate in light of the nature of the offense and the

       character of the offender.” Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App.

       2013), trans. denied. “An appellant bears the burden of showing both prongs of

       the inquiry favor revision of her sentence.” Id. (citing Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006)). “We must give ‘deference to a trial court’s

       sentencing decision, both because Rule 7(B) requires us to give due

       consideration to that decision and because we understand and recognize the

       unique perspective a trial court brings to its sentencing decisions.’” Gil v. State,

       988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013) (quoting Trainor v. State, 950

       N.E.2d 352, 355-56 (Ind. Ct. App. 2011), trans. denied.)


[16]   In Anderson, we found that the appellant waived her Rule 7(B) argument

       because she argued on appeal “only the ‘character’ prong and not the ‘nature of

       the offense’ prong.” 989 N.E.2d at 827. Lykins argues only that his sentence

       was inappropriate based on his character and has made no arguments as to the

       nature of the offense. As such, Lykins has waived any argument in this regard.




       Court of Appeals of Indiana | Memorandum Decision 88A04-1408-CR-387 | February 13, 2015   Page 8 of 9
[17]   Waiver notwithstanding, Lykins’s argument still fails. In reviewing the first

       prong of the appropriateness inquiry, Lykins’s offense was astonishingly violent

       and perpetrated against a defenseless, infant victim. As explained above,

       Lykins’s actions grossly exceeded the elements of the charged offense and

       undoubtedly justified an enhanced sentence.


[18]   As for his character, Lykins was on bond for possession of a controlled

       substance when he committed the instant offense. Lykins admitted to using

       drugs since he was eighteen years old, beginning with marijuana and ultimately

       progressing to more serious drugs such as methamphetamine and heroin.

       Lykins argues that his use of heroin caused him to kill L.C. This is no excuse.

       Lykins was aware of the problems drugs had caused and did not change his

       pattern of reckless behavior. Moreover, the fact that Lykins was using drugs

       while he was supposed to be caring for an eight-month-old child further

       indicates the nature of his character. Accordingly, we have found nothing to

       suggest that Lykins’s sentence is inappropriate based on the nature of his

       offense or character.


[19]   The judgment of the trial court is affirmed.


       Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 88A04-1408-CR-387 | February 13, 2015   Page 9 of 9
