      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as                            Jun 23 2015, 1:19 pm
      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
      Leanna Weissmann                                         Gregory F. Zoeller
      Lawrenceburg, Indiana                                    Attorney General of Indiana

                                                               Karl M. Scharnberg
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Shawn L. Elam,                                           June 23, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               15A01-1411-CR-489
              v.                                               Appeal from the Dearborn Superior
                                                               Court
      State of Indiana,                                        The Honorable Sally Blankenship,
                                                               Judge
      Appellee-Plaintiff
                                                               Case No. 15D02-1401-FD-18




      Crone, Judge.


                                               Case Summary
[1]   Shawn Elam appeals his four-year sentence for class D felony domestic battery

      with a child present and class D felony neglect of a dependent. The dispositive

      issue presented for our review is whether the sentence is inappropriate in light

      Court of Appeals of Indiana | Memorandum Decision 15A01-1411-CR-489 | June 23, 2015            Page 1 of 6
      of the nature of the offense and the character of the offender. Finding that Elam

      has failed to show that his sentence is inappropriate, we affirm.


                                 Facts and Procedural History
[2]   One night in January 2014, Elam took $400 or $500 from his fiancée, L.C.,

      with whom he shared an infant son, and went to the casino. He won $800 and

      took that money back to the casino the next morning. After gambling that day,

      he came home angry because he had lost all of the money. He took a vacuum

      cleaner that he and L.C. had recently purchased and returned it for more

      gambling money, which he also promptly lost. When Elam returned home,

      L.C. was sitting on the couch cradling their two-month-old son in her arms.

      Elam took the baby from L.C.’s arms and tossed him onto the couch. He then

      grabbed L.C. by the hair, threw her onto the floor, and kicked her with his steel-

      toed boots. Elam then placed a pillow over L.C.’s face to suffocate her.

      Afterwards, Elam put his hands around L.C.’s neck, strangling her, and said

      that he “wanted to watch [her] eyes roll behind [her] head and pop out of [her]

      face.” Tr. at 37. Elam also said he was going to kill L.C., her grandmother, and

      their baby if she did not find more money for him.


[3]   L.C. called a friend using Elam’s phone and asked to borrow some money. The

      friend agreed to lend L.C. the money, and Elam allowed her to go pick it up

      while the baby stayed behind with him. When L.C. arrived at the friend’s

      house, he noticed the marks on her face and neck and asked what happened

      and why L.C. had not called the police. She told her friend that she had not

      called because she did not have access to a phone. L.C. left with the money, but
      Court of Appeals of Indiana | Memorandum Decision 15A01-1411-CR-489 | June 23, 2015   Page 2 of 6
      on her way home decided to go to the police station. L.C. reported the incident

      to the police, and they accompanied her to her house. When Elam saw that the

      police were at the door instead of L.C., he slammed and locked the door. The

      police kicked down the door with their tasers drawn and pointed toward Elam.

      Elam held the baby in front of himself as a shield until police convinced him to

      put the baby down.


[4]   The State charged Elam with class D felony domestic battery with a child

      present; class D felony intimidation; class D felony strangulation; class B

      misdemeanor battery; and class D felony neglect of a dependent. Elam agreed

      to plead guilty to domestic battery and neglect of a dependent in exchange for

      the dismissal of the remaining charges. Sentencing was left to the trial court’s

      discretion and Elam received three years for domestic battery and one year for

      neglect of a dependent to be executed consecutively for an aggregate term of

      four years of imprisonment.


                                     Discussion and Decision
[5]   Elam contends that his sentence is inappropriate and seeks resentencing to the

      advisory one-and-one-half-year sentence on the domestic battery conviction to

      run concurrent to his sentence for neglect of a dependent. This “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.” Ind. Appellate Rule

      7(B). Whether the reviewing court regards a sentence as inappropriate turns on

      a “sense of the culpability of the defendant, the severity of the crime, the
      Court of Appeals of Indiana | Memorandum Decision 15A01-1411-CR-489 | June 23, 2015   Page 3 of 6
      damage done to others, and myriad other factors that come to light in a given

      case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). This Court “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 Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007)). The

      defendant bears the burden of persuading the Court that his sentence is

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

      defendant bears the burden of showing both prongs of the inquiry—the nature

      of the offense and the character of the defendant—favor revision of his

      sentence. Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013), trans.

      denied.


[6]   Regarding the nature of the offense, Elam argues that the sentence is

      inappropriate because no injury actually occurred to his son since he ultimately

      put the infant down safely. Even though the baby suffered no physical injury,

      Elam’s actions in holding the baby as a shield from the tasers being aimed at

      him nonetheless endangered the child. Further, Elam’s throwing the baby on

      the couch placed the child in danger. The child could have bounced off of the

      couch and onto the floor, or landed in a position that could have injured the

      child.


[7]   Elam further argues that the advisory one-and-one-half-year sentence for

      domestic battery is more appropriate because the legislature has taken into

      Court of Appeals of Indiana | Memorandum Decision 15A01-1411-CR-489 | June 23, 2015   Page 4 of 6
      account the severity of each crime in designating the crime’s level and

      proportioning the punishment accordingly. The inquiry for the appellate court

      is whether the sentence imposed is inappropriate, “not whether another

      sentence is more appropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App.

      2008). The advisory sentence is “the starting point the Legislature has selected

      as an appropriate sentence for the crime committed.” Anglemyer v. State, 868

      N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. A person who

      commits class D felony domestic battery “shall be imprisoned for a fixed term

      of between six months and three years, with the advisory sentence being one

      and one-half years.” Ind. Code § 35-50-2-7(a). That crime is committed by one

      who knowingly or intentionally touches an individual with whom he has a

      child in common in a rude, insolent, or angry manner that results in bodily

      injury to the person in the physical presence of a child less than sixteen years of

      age, knowing that the child is present and might be able to see or hear the

      offense. Ind. Code § 35-42-2-1.3.


[8]   Elam, in the presence of their child, grabbed L.C. by her hair, threw her on the

      ground, and then suffocated, choked, and kicked her leaving bodily injuries to

      her knee, head, eyes, neck, and elbows. Elam threatened to kill L.C., their baby,

      and L.C.’s grandmother if she did not retrieve money to replace the money he

      lost gambling. The nature of this attack is extremely violent and senseless and

      warrants a sentence in excess of the advisory. Ordering the sentences for

      domestic battery and neglect of a dependent to be served consecutively is not

      inappropriate because multiple victims justify the imposition of consecutive


      Court of Appeals of Indiana | Memorandum Decision 15A01-1411-CR-489 | June 23, 2015   Page 5 of 6
       sentences. Gleaves v. State, 859 N.E.2d 766, 772 (Ind. Ct. App. 2007). Here, both

       L.C. and the child were victims.


[9]    Regarding his character, Elam argues that acknowledging the behavior that led

       to this crime at sentencing and completing anger management and parenting

       classes while incarcerated speaks well to his character and renders the sentence

       inappropriate. We disagree. Elam has a criminal history that includes a juvenile

       adjudication for receiving stolen property and a subsequent probation violation;

       convictions as an adult for illegal possession of an alcoholic beverage in Indiana

       in 2005; improper handling of a firearm in a motor vehicle in Ohio in 2007;

       disorderly conduct in Ohio in 2008; possession of drugs in Ohio in 2010; and

       driving under financial responsibility suspension in Ohio in 2013; an active

       warrant for operating on a suspended/revoked driving license in Kentucky in

       2013; and the instant matter. The irrational, cruel, and violent behavior

       exhibited by Elam in his attack on L.C. and his son further reflects his poor

       character. Thus, Elam has failed to show that both the nature of the offense and

       his character render his four-year aggregate sentence inappropriate.


[10]   Affirmed.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A01-1411-CR-489 | June 23, 2015   Page 6 of 6
