MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                  Jun 05 2019, 8:51 am
regarded as precedent or cited before any                                  CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark Small                                               Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Lisiate U. Tavake,                                       June 5, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2735
        v.                                               Appeal from the Montgomery
State of Indiana,                                        Circuit Court
Appellee-Plaintiff.                                      The Honorable Harry A. Siamas,
                                                         Judge
                                                         Trial Court Cause No.
                                                         54C01-1804-F5-999




Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2735 | June 5, 2019                   Page 1 of 7
[1]   Lisiate U. Tavake (“Tavake”) was convicted in the Montgomery Circuit Court

      of Level 6 felony battery resulting in moderate bodily injury. Tavake now

      appeals arguing that the evidence was insufficient to support his conviction.


[2]   We affirm.


                                 Facts and Procedural History

[3]   On April 9, 2018, Tavake and Dakota Mills (“Mills”) were inmates in the “G”

      pod housing unit at the Montgomery County Jail. The night of the incident, the

      pod held 17 inmates. Each inmate has a mat or pallet on his bed on which to

      sleep. However, Mills had put his mat on the floor in order to help him sleep

      better, which he had previously done multiple times.

[4]   Mills had no disagreements or conflicts with Tavake and had not

      communicated with Tavake all morning besides asking Tavake for help to

      better understand the Bible. Around 2:20 a.m., Mills walked around the pod for

      a few minutes because he said he “was coming off of drugs . . . and [] did not

      feel well at the time.” Tr. p. 52. No one in the pod was awake, and after

      walking around for a few minutes, Mills returned to his mat on the floor to

      sleep.


[5]   Without warning, Tavake punched Mills in the head and kicked him in the

      chest and face. Mills screamed, which Cody Swick (“Deputy Swick”), jail

      deputy at the Montgomery County Sheriff’s Department, heard and described

      the noise coming from “G” pod as “loud screaming or screech, sound of

      distress.” Id. at 79. After striking Mills over 20 times, Tavake told Mills to “get


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2735 | June 5, 2019   Page 2 of 7
      on the button.”1 Id. at 54. Mills pushed the button, and Deputy Swick

      responded. Deputy Swick observed that Mills was heavily breathing, bleeding,

      bruised, frightened, and “obviously beaten,” so Mills was removed from the

      pod. Id. at 80.


[6]   Deputy Swick examined Mills and reported that Mills’s ear was purple, with a

      large cut behind it. Mills also had lumps on the back of his head. Mills

      identified Tavake as the one responsible for his injuries. Id. at 52.

      Approximately ten minutes after the incident, Mills told Deputy Swick he was

      punched four times on the left side of his head. Id. at 64.


[7]   After taking Mills out of the pod to go see the county jail nurse, Deputy Swick

      returned to the pod and examined Tavake’s hands. Deputy Swick described

      Tavake’s hands as red, swollen, and blood-smeared. Deputy Swick also noticed

      a bloodied towel near Tavake’s bed. Id. at 82–83. After looking at Tavake’s

      hands and taking photographs, jail personnel placed Tavake in handcuffs. The

      attack was captured by the jail’s infrared surveillance camera system. Captain

      Lonnie Jones (“Captain Jones”) of the Montgomery County Sheriff’s

      Department was the jail commander and testified he was familiar with both the

      video surveillance system in the jail and with Tavake. Captain Jones identified

      the man in the video hitting and kicking Mills as Tavake. Id. at 92.




      1
        “Get on the button” refers to when an inmate needs to communicate to the jail staff that he needs to be
      removed from the pod.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2735 | June 5, 2019                       Page 3 of 7
[8]   Mills’s injuries were photographed, and the photographs show that his mouth

      was bloody; his left ear was badly bruised and cut; and he had a few grape-sized

      bumps on the back of his head. Mills also reported his pain level was a seven

      out of ten, with ten being the highest. Id. at 54–58, 72–73, 80–83, 102; Ex. Vol.,

      State’s Exs. 2A–2J. Shortly thereafter, Mills was transported to the local

      hospital for treatment, and the treating emergency room physician, Dr. Ryan

      Weakley (“Dr. Weakley”), determined that Mills had sustained multiple

      contusions, scalp hematomas, shoulder strain, and chest contusions, but that he

      had no fractures. Tr. pp. 100–05; Ex. Vol., State’s Exs. 4–5. Dr. Weakley

      testified in his deposition that Mills rated his pain as seven out of ten on a zero

      out of ten pain scale and described that level as being substantial pain. Tr. pp.

      100–102. Mills stayed in the emergency room for a little over an hour and

      received ice packs to be applied to the back of his head and the left side of his

      face. He was discharged with a recommendation for over-the-counter pain

      control medication. Id. at 109-10.


[9]   On April 13, 2018, the State charged Tavake with Level 6 felony battery

      resulting in moderate bodily injury.2 A one-day jury trial commenced on

      November 13, 2018. At trial, Tavake argued that Mills’s description of his

      injuries was not consistent with what he had told Deputy Swick at the jail

      shortly after the incident and the video did not clearly show that Tavake was


      2
       Tavake was charged with battery as a Level 5 felony (Count 1) and battery as a Level 6 felony (Count 2).
      Appellant’s App. Vol. 2, p. 11. On November 5, 2018, the State sought to dismiss Count 1, and the State’s
      motion was granted. Id. at 6–7.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2735 | June 5, 2019                     Page 4 of 7
       the person who attacked Mills in the pod. Tavake was found guilty as charged.

       On November 13, 2018, the trial court sentenced Tavake to two years executed

       in the Indiana Department of Correction with no days credit for time served.

       Tavake now appeals.


                                      Discussion and Decision

[10]   Tavake contends that the evidence is insufficient to sustain his conviction.

       When reviewing a claim of insufficient evidence to sustain a conviction, we

       consider only the probative evidence and reasonable inferences supporting the

       verdict. Jackson v. State, 50 N.E.3d 767, 770 (Ind. 2016). In this case, the jury

       was the fact-finder. It is the fact-finder’s role, not ours, to assess witness

       credibility and weigh the evidence to determine whether it is sufficient to

       support a conviction. Id. We will affirm the conviction unless no reasonable

       fact-finder could have found the elements of the crime proven beyond a

       reasonable doubt. Id. It is therefore not necessary that the evidence overcome

       every reasonable hypothesis of innocence; rather, the evidence is sufficient if an

       inference may reasonably be drawn from it to support the verdict. Drane v. State,

       867 N.E.2d 144, 147 (Ind. 2007).


[11]   At the time of Tavake’s Level 6 felony battery resulting in moderate bodily

       injury conviction, the State had to show that Tavake: (1) knowingly or

       intentionally; (2) touched Dakota Mills; (3) in a rude, insolent, or angry

       manner; (4) which resulted in moderate bodily injury to Mills. Ind. Code § 35-




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2735 | June 5, 2019     Page 5 of 7
       42-2-1(e)(1). Tavake argues that there was insufficient evidence to support the

       conclusion that he was the person who attacked Mills. We disagree.

[12]   Mills testified that Tavake struck and kicked him repeatedly about the head and

       body on April 9, 2018. Tr. pp. 52–53. Mills also testified that as a result of

       Tavake’s actions, he sustained injuries to the mouth, ear, and bumps on the

       back of his head and was in great pain. Id. at 55. Additionally, Deputy Swick

       testified that he heard loud screaming and sounds of distress coming from “G”

       pod where Mills and Tavake were housed and described Mills as “frightened

       and obviously beaten.” Id. at 80. Further, Deputy Swick observed blood on

       Tavake’s hand and a bloodied towel near Tavake’s bed. Id. at 85. Moreover,

       Captain Jones identified Tavake as the person on the video surveillance system

       hitting and kicking Mills, who was sleeping on his mat on the floor. Id. at 93.


[13]   Tavake argues that the video of the incident was grainy and it was not clear that

       Tavake was the one hitting and kicking Mills. Tavake further argues that the

       photograph of his hands that was admitted at trial does not show any blood or

       visible injuries on them. Additionally, Tavake claims Mills’s testimony is

       incredible because Mills changed his statement about how many times he was

       hit and kicked.

[14]   Mills unequivocally testified that Tavake attacked him. Captain Jones identified

       Tavake as the person who attacked Mills in the infrared video that was

       admitted at trial. Tavake’s argument to the contrary is nothing more than a

       request for us to reweigh the evidence on appeal, which we will not do.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2735 | June 5, 2019   Page 6 of 7
                                                 Conclusion

[15]   Based on the facts and circumstances before us, the evidence presented to the

       jury was sufficient to sustain Tavake’s conviction. Accordingly, we affirm his

       Level 6 felony battery conviction.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2735 | June 5, 2019   Page 7 of 7
