MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any
court except for the purpose of establishing                         Jun 24 2020, 10:11 am

the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
estoppel, or the law of the case.                                        Court of Appeals
                                                                           and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Valerie K. Boots                                         Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
– Appellate Division
                                                         Jodi Kathryn Stein
Timothy J. Burns                                         Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tommy L. Sanders,                                        June 24, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-22
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Angela Dow
Appellee-Plaintiff.                                      Davis, Judge
                                                         The Honorable Matthew M.
                                                         Kubacki, Judge Pro Tempore
                                                         Trial Court Cause No.
                                                         49G16-1907-F6-29949



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-22 | June 24, 2020                   Page 1 of 9
[1]   Tommy Sanders (“Sanders”) was convicted in Marion Superior Court of Level

      6 felony domestic battery. Sanders challenges the sufficiency of the evidence,

      arguing that the State failed to prove that the offense occurred in the presence of

      a child less than sixteen years of age. Sanders also argues that his 730-day

      sentence, with 722 days suspended and 365 days on probation, is inappropriate

      in light of the nature of the offense and the character of the offender.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In July 2019, Sanders and his girlfriend, Heather Vonburg (“Vonburg”), lived

      with Vonburg’s brother, Storm Mulroney (“Mulroney”), and her sister-in-law,

      Rayschell Capps (“Capps”). Vonburg’s four-year-old daughter and Capps’s

      four-year-old son lived at the residence as well. The residents of the home,

      including the children, generally slept in the front room of the house.


[4]   On the evening of July 26, 2019, Vonburg’s daughter and Capps and her son

      were trying to sleep in the front room when Sanders and Vonburg began

      arguing in the same room. During the argument, Vonburg tried to stand up

      from the couch where she was seated, and Sanders pushed her down. He then

      grabbed Vonburg by the throat and held her against a wall. Tr. pp. 7–8.


[5]   Shortly thereafter, Sanders and Vonburg resumed arguing in the kitchen.

      During their argument, Mulroney arrived home and observed the couple in the

      kitchen screaming at each other. Mulroney told Sanders he needed to leave the

      residence. Sanders then pushed a table at Vonburg, and the table struck her.
      Court of Appeals of Indiana | Memorandum Decision 20A-CR-22 | June 24, 2020   Page 2 of 9
      Mulroney called the police. The responding officer who spoke to Vonburg

      observed redness around her neck. Tr. p. 40.


[6]   On July 31, 2019, the State charged Sanders with Level 6 felony domestic

      battery. The charging information alleged that Sanders knowingly touched

      Vonburg “in a rude, insolent, or angry manner by grabbing her” and that the

      offense was committed “in the presence of a child less than 16 years of age.”

      Appellant’s App. p. 15. The State also alleged that Sanders knew the child was

      present and “might be able to see or hear the offense.” Id.


[7]   Sanders’s bench trial commenced on November 7, 2019. Vonburg did not

      testify at trial. At Sanders’s request, the trial court continued the trial so that he

      could secure the testimony of his defense witnesses. The bench trial concluded

      on December 5, 2019.


[8]   The trial court found Sanders guilty as charged. Sanders waived his right to a

      presentence investigation report, and the trial court proceeded to hold the

      sentencing hearing. The court considered the physical nature of the offense as

      an aggravating circumstance. Twenty-nine-year-old Sanders was employed full

      time and had no prior criminal history. The court considered his lack of

      criminal history and that the offense was unlikely to reoccur as mitigating

      circumstances. The court found that the mitigating circumstances outweighed

      the aggravating circumstance. The trial court ordered Sanders to serve 730 days,

      gave him credit for four days he served in jail awaiting trial and four days of

      good-time credit, and suspended the remainder of the sentence. The court


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-22 | June 24, 2020   Page 3 of 9
       ordered Sanders to serve 365 days on probation and to participate in the

       Batterer’s Intervention Program. The court indicated that if Sanders completed

       the program within 180 days, he could file a petition to terminate his probation.

       If Sanders enrolled in the program but was unable to complete it within 180

       days, he could petition for non-reporting probation. Sanders now appeals.


                                              I. Sufficient Evidence

[9]    Upon review of a challenge to the sufficiency of the evidence to support a

       criminal conviction, we respect the fact-finder’s exclusive province to weigh

       conflicting evidence. Miller v. State, 106 N.E.3d 1067, 1073 (Ind. Ct. App. 2018)

       (citing McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)), trans. denied. We

       therefore neither reweigh the evidence nor judge the credibility of the witnesses.

       Id. Instead, we consider only the probative evidence and reasonable inferences

       supporting the judgment. Id.


[10]   To prove that Sanders committed Level 6 felony domestic battery, the State was

       required to prove that he knowing touched Vonburg in a rude, insolent, or

       angry manner in the presence of a child less than sixteen years of age knowing

       that the child was present and might be able to see or hear the offense. Ind.

       Code § 35-42-2-1.3(a)(1), (b)(2); Appellant’s App. p. 15. Sanders concedes that

       the evidence is sufficient to prove that he touched Vonburg in a rude, insolent,

       or angry manner. Appellant’s Br. at 8.


[11]   However, he argues that the State failed to prove that Sanders committed the

       offense in the presence of a child less than sixteen years of age, knowing that


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-22 | June 24, 2020   Page 4 of 9
       the child was present and might be able to see or hear the offense. This charged

       element elevated the offense from a Class A misdemeanor to a Level 6 felony.

       I.C. § 35-42-2-1.3(a)(1), (b)(2).


[12]   The State was not required to prove that the child actually saw or heard the

       battery, but only “the possibility” that the child “might” see or hear it. True v.

       State, 954 N.E.2d 1105, 1111 (Ind. Ct. App. 2011) (citing Boyd v. State, 889

       N.E.2d 321, 325 (Ind. Ct. App. 2008), trans. denied); see also Manuel v. State, 971

       N.E.2d 1262, 1270 (Ind. Ct. App. 2012) (explaining that “the critical question

       in determining whether a child is ‘present’ for purposes of the [domestic battery]

       statute is whether a reasonable person would conclude that the child might see

       or hear the offense; not whether the child is in the same room as where the

       offense is taking place.”).


[13]   Sanders battered Vonburg in the front room of the house where Capps, her

       four-year-old son, and Vonburg’s four-year-old daughter were trying to sleep.

       After reviewing Capps’s and Mulroney’s testimonies, we can reasonably infer

       Sanders would have known that the children were present. The State was not

       required to prove that either four-year-old child actually saw or heard Sanders

       batter Vonburg, but only that it was possible that the children might see or hear

       the battery. Because the children were present in the same room where the

       battery occurred, the State presented sufficient evidence from which a

       reasonable fact finder could conclude that Sanders committed battery in the

       presence of a child less than sixteen years of age. For this reason, we affirm

       Sanders’s Level 6 felony domestic battery conviction.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-22 | June 24, 2020   Page 5 of 9
                                          II. Inappropriate Sentence

[14]   Pursuant to Indiana Appellate Rule 7(B), “[t]he Court may revise a sentence

       authorized by statute if, after due consideration of the trial court’s decision, the

       Court finds that the sentence is inappropriate in light of the nature of the offense

       and the character of the offender.” We must exercise deference to a trial court’s

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

       that decision, and we understand and recognize the unique perspective a trial

       court brings to its sentencing decisions. Rose v. State, 36 N.E.3d 1055, 1063 (Ind.

       Ct. App. 2015). “Such deference should prevail unless overcome by compelling

       evidence portraying in a positive light the nature of the offense (such as

       accompanied by restraint, regard, and lack of brutality) and the defendant’s

       character (such as substantial virtuous traits or persistent examples of good

       character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[15]   The determination of whether we regard a sentence as inappropriate “turns on

       our sense of the culpability of the defendant, the severity of the crime, the

       damage done to others, and myriad other factors that come to light in a given

       case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008)). The appropriate question is not

       whether another sentence is more appropriate, but whether the sentence

       imposed is inappropriate. Rose, 36 N.E.3d at 1063.


[16]   Although we have the power to review and revise sentences, the principal role

       of appellate review should be to attempt to “leaven the outliers, and identify

       some guiding principles for trial courts and those charged with improvement of
       Court of Appeals of Indiana | Memorandum Decision 20A-CR-22 | June 24, 2020   Page 6 of 9
       the sentencing statutes, but not to achieve a perceived ‘correct’ result in each

       case.” Cardwell, 895 N.E.2d at 1225. Our review under Rule 7(B) should focus

       on “the forest—the aggregate sentence—rather than the trees—consecutive or

       concurrent, number of counts, or length of the sentence on any individual

       count.” Id. And it is the defendant’s burden on appeal to persuade us that the

       sentence imposed by the trial court is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006).


[17]   Indiana Code section 35-50-2-7 provides that a person who commits a Level 6

       felony “shall be imprisoned for a fixed term of between six (6) months and two

       and one-half (2 1/2) years, with the advisory sentence being one (1) year.”

       Sanders was sentenced to 730 days, the equivalent of two years. He was given

       credit for time served, which totaled eight days with good time credit. The trial

       court suspended the remaining 722 days of the sentence and ordered Sanders to

       serve 365 days on probation. The trial court also indicated it would terminate

       Sanders’s probation if he completed the Batterer’s Intervention Program within

       180 days. If Sanders is unable to do so within that time frame, but is enrolled in

       the program, the trial court stated it would modify his probation to non-

       reporting.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-22 | June 24, 2020   Page 7 of 9
[18]   Although Sanders’s sentence exceeds the advisory sentence for his offense, he

       received a significant benefit from his alternative placement.1 To determine

       whether Sanders’s sentence is inappropriate, we consider all aspects of the penal

       consequences imposed by the trial court in sentencing the defendant, including

       whether a portion of the sentence is ordered suspended “or otherwise crafted

       using any of the variety of sentencing tools available to the trial judge.”

       Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).


[19]   Sanders argues that “[t]here does not appear to be any facts which would

       support the sentence beyond the advisory sentence.” Appellant’s Br. at 11. And

       Sanders claims his sentence is inappropriate because he is gainfully employed

       and has no criminal history.


[20]   But Sanders committed a violent battery against Vonburg. During an argument,

       as Vonburg tried to stand up, Sanders pushed her back down on the couch. He

       then grabbed Vonburg by the throat and held her against a wall. When the

       argument continued, Sanders pushed a table at Vonburg and struck her with it.

       Vonburg still had red marks on her throat when the officers arrived to

       investigate, approximately one hour after the battery.


[21]   The trial court fashioned a sentenced aimed at rehabilitating Sanders. If Sanders

       complies with the conditions imposed by the trial court, his sentence will be




       1
        We also observe that “for purposes of Rule 7(B) review, a maximum sentence is not just a sentence of
       maximum length, but a fully executed sentence of maximum length.” See Jenkins v. State, 909 N.E.2d 1080,
       1085–86 (Ind. Ct. App. 2009), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-22 | June 24, 2020                    Page 8 of 9
       modified to 180 days, the minimum sentence for a Level 6 felony. For all of

       these reasons, we conclude that Sanders’s sentence is not inappropriate in light

       of the nature of the offense and the character of the offender.


                                                 Conclusion
[22]   The State presented sufficient evidence to prove that Sanders committed Level

       6 felony domestic battery. And Sanders’s 730-day sentence with 722 days

       suspended and 365 days on probation is not inappropriate in light of the nature

       of the offense and the character of the offender.


[23]   Affirmed.


       Riley, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-22 | June 24, 2020   Page 9 of 9
