MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             Nov 10 2015, 8:47 am
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
T. Andrew Perkins                                       Gregory F. Zoeller
Peterson Waggoner & Perkins, LLP                        Attorney General of Indiana
Rochester, Indiana
                                                        Richard C. Webster
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Nathan Scott Davis,                                     November 10, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        25A03-1507-CR-909
        v.                                              Appeal from the Fulton Superior
                                                        Court
State of Indiana,                                       The Honorable Wayne E. Steel,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        25D01-1505-CM-214



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 25A03-1507-CR-909 | November 10, 2015   Page 1 of 6
                                Case Summary and Issue
[1]   Nathan Davis entered a plea of guilty to battery resulting in bodily injury, a

      Class A misdemeanor. The trial court sentenced Davis to one year executed in

      the Fulton County Jail. Davis appeals his sentence, raising one issue for our

      review, which we restate as whether Davis’ sentence is inappropriate in light of

      the nature of his offense and his character. Concluding Davis’ sentence is not

      inappropriate, we affirm.



                            Facts and Procedural History
[2]   On May 17, 2015, Officer Gerard Ostrom of the Rochester Police Department

      was dispatched to a home in Rochester, Indiana. Upon entering the home,

      Officer Ostrom observed Amber Gaines lying on the floor with Davis kneeling

      next to her. Gaines had suffered bruising and swelling to her left eye and

      experienced pain on the right side of her body. Further, Gaines was crying and

      telling Davis to get away from her.


[3]   As Officer Ostrom began separating the two, Gaines stated Davis was drunk.

      Upon being asked what had occurred, Davis stated he became upset after

      Gaines had swallowed a bunch of pills to harm herself. In addition, Davis

      stated after Gaines took the pills, Davis hit Gaines, but did not know how many

      times. Upon being asked about Gaines’ facial injuries, Davis stated he hit her

      in the stomach, but did not remember hitting her in the face. Officer Ostrom

      arrested Davis. After arresting Davis, Officer Ostrom spoke to Gaines. Gaines


      Court of Appeals of Indiana | Memorandum Decision 25A03-1507-CR-909 | November 10, 2015   Page 2 of 6
      admitted to swallowing the pills because Davis had stated he was going to leave

      her. In addition, Gaines stated Davis hit her in the face and on the right side of

      her body.


[4]   The following day, the State charged Davis with battery resulting in bodily

      injury, a Class A misdemeanor. At his initial hearing, Davis waived counsel

      and entered a plea of guilty. At the hearing, the State asked Davis whether he

      hit Gaines in the face. Davis replied, “I was very drunk. I blacked out during

      this. I don’t remember the altercation at all. But I do understand that, you

      know, if that’s what the report says, that’s what the report says.” Transcript at

      6-7.


[5]   Prior to sentencing, Gaines provided a written statement to the trial court

      describing the incident. Gaines stated Davis was drunk and that he wanted to

      end their relationship. The argument escalated and Davis began screaming at

      Gaines, stating she was “a bad mother and that she needed to stop pretending

      to be a good one.” Appellant’s Appendix at 18. Gaines stated something

      “inside [her] head snapped” and she decided to take “what was left of [her]

      prescription of [B]entyl.” Id. Davis then “complete[ly] flipped out” and began

      grabbing her hair and pulling on her. Id. Davis demanded she force herself to

      puke. When Gaines ignored Davis, Davis began punching Gaines in the head

      and the back of the neck. Further, Davis began dragging Gaines toward the

      bathroom, but after Davis punched Gaines on the right side of her body, Gaines

      just laid on the floor. Davis then punched Gaines in the face near her left eye.

      Shortly thereafter, Officer Ostrom arrived at the home.

      Court of Appeals of Indiana | Memorandum Decision 25A03-1507-CR-909 | November 10, 2015   Page 3 of 6
[6]   At sentencing, the trial court entered judgment of conviction and sentenced

      Davis to 365 days executed in the Fulton County Jail. This appeal ensued.



                                Discussion and Decision
                                     I. Standard of Review
[7]   Davis contends his sentence is inappropriate in light of the nature of the offense

      and his character. A reviewing court possesses the authority to revise a

      defendant’s sentence “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). The burden is on

      the defendant to persuade the reviewing court the sentence is inappropriate.

      Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). “[S]entencing is

      principally a discretionary function in which the trial court’s judgment should

      receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

      2008). It is not for the reviewing court “to achieve a perceived ‘correct’ result in

      each case,” but “[t]he principal role of appellate review should be to attempt to

      leaven the outliers.” Id. at 1225. Whether we regard a sentence as

      inappropriate turns on “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.” Id. at 1224.




      Court of Appeals of Indiana | Memorandum Decision 25A03-1507-CR-909 | November 10, 2015   Page 4 of 6
                                        II. Davis’ Sentence
[8]    As to the nature of the offense, the advisory sentence is the starting point the

       legislature 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. Davis was convicted of battery resulting in bodily injury, a Class A

       misdemeanor. “A person who commits a Class A misdemeanor shall be

       imprisoned for a fixed term of not more than one (1) year . . . .” Ind. Code §

       35-50-3-2. There is no advisory sentence for a Class A misdemeanor. See id.

       The trial court sentenced Davis to 365 days executed in the Fulton County Jail.


[9]    Davis contends the circumstances of the encounter suggest that it was an

       isolated incident, and influenced by panic and alcohol, not anger or viciousness.

       Specifically, Davis argues the fact Gaines had taken pills to harm herself

       justifies his reaction. Yet, the encounter began when Davis stated he wanted to

       end their relationship. When Gaines requested the pair discuss the matter the

       following morning, Davis got mad, began yelling and insulting Gaines, stating

       she was a bad mother and needed to stop pretending to be a good one. That,

       Gaines claimed, is when she decided to take the pills. Rather than calling 911

       to seek assistance with his girlfriend’s fragile state, Davis turned to violence.


[10]   As to his character, Davis contends his criminal history is nonviolent, he is only

       twenty-four years old, and he showed immediate remorse for his crime.

       Although Davis did show signs of remorse, he initially denied anything

       occurring between him and Gaines. Although Davis ultimately pled guilty, this


       Court of Appeals of Indiana | Memorandum Decision 25A03-1507-CR-909 | November 10, 2015   Page 5 of 6
       is tempered by the fact he shied away from taking full responsibility for his

       actions at the sentencing hearing. When asked if he hit Gaines, Davis stated, “I

       was very drunk. I blacked out during this. I don’t remember the altercation at

       all. But I do understand that, you know, if that’s what the report says, that’s

       what the report says.” Tr. at 7. Finally, as to his criminal history, we note

       Davis was previously convicted of four Class D felonies for theft and the trial

       court sentenced him to one and one half years in the Indiana Department of

       Corrections with the entire sentence suspended except for time served. He was

       placed on probation for a period of one year and three months. That probation

       was revoked after Davis was charged with other crimes in Marshall County,

       Indiana. Therefore, it is evident Davis previously received the benefit of a less-

       than-advisory, non-executed sentence and did not take advantage of it. Given

       the nature of the offense and Davis’ character, we are not persuaded Davis’

       sentence of one year in the Fulton County Jail is inappropriate.



                                              Conclusion
[11]   Davis’ sentence is not inappropriate in light of the nature of his offense or his

       character. Accordingly, we affirm the sentence.


[12]   Affirmed.


       Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 25A03-1507-CR-909 | November 10, 2015   Page 6 of 6
