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
                                                                 FILED
                                                               Jan 29 2013, 9:06 am
the defense of res judicata, collateral
estoppel, or the law of the case.
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ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

ZACHARY A. WITTE                                    GREGORY F. ZOELLER
Fort Wayne, Indiana                                 Attorney General of Indiana

                                                    JAMES B. MARTIN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

LANARD E. FOSTER,                                   )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 02A04-1207-CR-390
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                       APPEAL FROM THE ALLEN SUPERIOR COURT
                           The Honorable Wendy W. Davis, Judge
                              Cause No. 02D05-1112-FD-1681



                                         January 29, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                       Case Summary

       Lanard E. Foster punched and kicked his girlfriend in and around their vehicle while

the couple’s young children were present. Neighbors heard the children screaming, saw the

physical attack, and called the police. The State charged Foster with class D felony domestic

battery in the presence of a child under age sixteen and class D felony domestic battery with a

prior domestic battery conviction. A jury found him guilty as charged, and the trial court

sentenced him to concurrent three-year executed terms.

       Foster appeals, claiming that his sentence is inappropriate in light of the nature of the

offense and his character. Finding that he has failed to meet his burden of establishing that

his sentence is inappropriate, we affirm.

                              Facts and Procedural History

       Early on December 9, 2011, Foster and his girlfriend Latoya Lovett had an argument

outside Foster’s father’s Fort Wayne residence, while two of the couple’s children sat in the

car, watching. The children, ages two and five, began crying and screaming as they observed

their father punching their mother in the face and kicking her in the head. At one point,

Lovett sprayed mace at Foster. As Foster continued to punch Lovett and the children

continued to scream, the neighbors took notice and called the police.

       When the police arrived, Foster fled into the house and locked the door. Police

observed Lovett, who was crying and had a bloody lip. When she confirmed that the man

who had run inside was the perpetrator, they attempted to enter the house. Foster then ran




                                               2
out the back door and through the yard, jumped the fence, and hid under a neighbor’s deck.

Police apprehended him and took him into custody.

       The State charged Foster with class D felony domestic battery in the presence of a

child under age sixteen and class D felony domestic battery by a person with a prior domestic

battery conviction. Foster was on parole when he committed the offenses and stipulated to a

prior domestic battery conviction. A jury found him guilty as charged, and the trial court

sentenced him to concurrent three-year terms. Foster now appeals his sentence. Additional

facts will be provided as necessary.

                                   Discussion and Decision

       Foster asks us to review and revise his sentence under Indiana Appellate Rule 7(B),

which states that we “may revise a sentence authorized by statute if, after due consideration

of the trial court’s decision, [this] Court finds that the sentence is inappropriate in light of the

nature of the offense and the character of the offender.” When a defendant requests appellate

review and revision of his sentence, we have the power to affirm, reduce, or increase the

sentence. Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). In conducting our review, we do

not look to see whether the defendant’s sentence is appropriate or if another sentence might

be more appropriate; rather, the test is whether the sentence is “inappropriate.” Fonner v.

State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). A defendant bears the burden of persuading

this Court that his sentence meets the inappropriateness standard. Anglemyer v. State, 868

N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218; Childress v. State, 848

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


                                                 3
       In considering the nature of a defendant’s offense, “the advisory sentence is the

starting point the Legislature has selected as an appropriate sentence.” Anglemyer, 868

N.E.2d at 494. Foster was sentenced to concurrent three-year terms for his two class D

felony domestic battery convictions, each of which carries a sentencing range of six months

to three years, with a one and one-half-year advisory term. Ind. Code § 35-50-2-7. Although

the present attack did not involve a life-threatening level of violence, it caused injury to

Lovett and was traumatic enough to alarm the neighbors who heard the children’s screams.

When the police approached the scene, Foster attempted to evade capture by fleeing through

the house, jumping a fence, and hiding under a neighbor’s deck. Simply put, his offenses

were neither innocuous nor victimless.

       Moreover, Foster’s extensive criminal history and noncompliance with the terms of

his parole bespeak an extremely unsavory character. By age twenty-five, he had accumulated

six misdemeanor convictions and five prior felony convictions, including prior convictions

for escape and domestic battery. He has been in and out of the criminal justice system and

was on parole when he committed the instant offenses. After he attacked Lovett, he

attempted to persuade a neighbor to lie to police by downplaying her account of what she saw

and heard.

       Foster cites undue hardship to his children as a basis for revising his three-year

aggregate sentence. Although we are mindful of the general societal benefit of a father’s

presence in his children’s lives, we are also mindful of the detriment to children whose father

chooses to batter their mother right before their eyes. Simply put, Foster’s pattern of


                                              4
disregard for the law and abuse of the leniency previously afforded him, together with his

openly abusive treatment of his children’s mother, indicates a persistent failure to learn from

his mistakes. We conclude that Foster has failed to meet his burden of demonstrating that his

sentence is inappropriate.1 Accordingly, we affirm.

        Affirmed.

KIRSCH, J., and MATHIAS, J., concur.




        1
         Notably, Foster’s counsel failed to include a copy of the presentence investigation report as required
by Indiana Appellate Rule 50(B).

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