MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Nov 06 2019, 10:27 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
Justin R. Wall                                          Curtis T. Hill, Jr.
Wall Legal Services                                     Attorney General of Indiana
Huntington, Indiana
                                                        Samuel J. Dayton
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Samuel L. Martin-Shively,                               November 6, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1146
        v.                                              Appeal from the Huntington
                                                        Circuit Court
State of Indiana,                                       The Honorable Davin G. Smith,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        35C01-1903-F5-64



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1146 | November 6, 2019                 Page 1 of 10
[1]   Samuel Martin-Shively appeals his convictions and the sentence imposed by the

      trial court for two counts of Level 5 Felony Criminal Confinement, two counts

      of Level 6 Felony Strangulation, two counts of Level 6 Felony Domestic

      Battery with a Prior Conviction, and one count of Level 6 Felony Intimidation,

      arguing that (1) the evidence is insufficient to support one of the strangulation

      convictions; (2) his convictions for criminal confinement and domestic battery

      violate Indiana’s prohibition against double jeopardy; and (3) the sentence is

      inappropriate in light of the nature of the offenses and his character. Finding the

      evidence sufficient, no double jeopardy violation, and the sentence not

      inappropriate, we affirm.


                                                   Facts
[2]   On March 11, 2019, Martin-Shively’s stepdaughter, sixteen-year-old A.B., came

      home from school. At the time, Martin-Shively was living with his wife, Sheila,

      and A.B., who was Sheila’s biological daughter. A.B. found Martin-Shively

      sitting on a mattress in the living room. Sheila was sitting right behind Martin-

      Shively. Martin-Shively had been sleeping on this mattress because he allegedly

      could not walk up the stairs to the bedroom due to a disability.


[3]   Martin-Shively was attempting to fix their television when A.B. asked Martin-

      Shively a question. Martin-Shively responded with anger, and the two began to

      loudly argue. After initially failing to do so, Martin-Shively successfully flipped

      A.B. over onto his mattress and began to spank her roughly twenty times “as

      hard as he could.” Tr. Vol. III p. 95. Sheila repeatedly asked Martin-Shively to

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1146 | November 6, 2019   Page 2 of 10
      stop because he was hurting A.B., but Martin-Shively continued spanking her.

      Eventually, Martin-Shively released A.B. At some point, A.B. and Martin-

      Shively started arguing again and Martin-Shively began striking the child.


[4]   Then suddenly, Martin-Shively threw A.B. onto the mattress, straddled her,

      pushed her onto her back, screamed into her face, and began to choke her. A.B.

      begged Martin-Shively to let her go because she could not breathe and because

      he was hurting her. Sheila intervened after a few minutes and said that that

      “was enough.” Id. at 98. A.B. then yelled at Martin-Shively just before going

      upstairs to bed.


[5]   The next day, March 12, 2019, A.B. came home from school and complained

      to Sheila about a spot on her arm where she had received a shot. Martin-Shively

      came into the room, lunged after A.B., and told her to “shut up.” Id. at 102.

      Before Martin-Shively could reach her, A.B. sprinted out the front door with

      her book bag and other belongings. Martin-Shively informed Sheila that she

      should call the police to report A.B. as a runaway child, and that if she did not,

      she and A.B. “could pack [their] stuff up pretty much and leave.” Id. at 151.


[6]   As Sheila walked into the dining room, Martin-Shively jumped off the living

      room mattress and started chasing her. Sheila tried to avoid Martin-Shively, but

      he grabbed her by the shoulders and slammed her into the dining room wall.

      After holding Sheila’s arms against the wall, Martin-Shively wrapped his hands

      around Sheila’s neck and threatened to kill her and A.B. Martin-Shively

      continued doing this for several minutes and released Sheila only after she


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1146 | November 6, 2019   Page 3 of 10
      agreed to call the police. Martin-Shively’s actions left Sheila with red marks on

      her arms and neck.


[7]   On March 13, 2019, the State charged Martin-Shively with two counts of Level

      5 felony criminal confinement, two counts of Level 6 felony strangulation, one

      count of Level 6 felony intimidation, and two counts of Level 6 felony domestic

      battery with a prior conviction. On March 22, 2019, Martin-Shively requested a

      speedy trial, which took place on April 24-25, 2019. At the conclusion of the

      trial, the jury found Martin-Shively guilty on all counts. At the May 21, 2019,

      sentencing hearing, the trial court sentenced Martin-Shively to five and one-half

      years for the criminal confinement counts and two years each for all the other

      counts. The trial court ordered that Martin-Shively serve all seven sentences

      concurrently in the Department of Correction, for an aggregate term of five and

      one-half years. Martin-Shively now appeals.


                              Discussion and Decision

                               I. Sufficiency of Evidence
[8]   First, Martin-Shively argues that the evidence is insufficient to support his

      conviction for Level 6 felony strangulation of Sheila.


[9]   When reviewing the sufficiency of the evidence supporting a conviction, we

      must affirm if the probative evidence and reasonable inferences drawn

      therefrom could have allowed a reasonable trier of fact to find the defendant

      guilty beyond a reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1146 | November 6, 2019   Page 4 of 10
       2005). It is not our job to reweigh the evidence or to judge the credibility of the

       witnesses, and we consider any conflicting evidence most favorably to the trial

       court’s ruling. Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005). “‘[T]he

       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) (quoting Pickens v.

       State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001)).


[10]   To convict Martin-Shively of Level 6 felony strangulation, the State was

       required to prove beyond a reasonable doubt that Martin-Shively—in a rude,

       angry, or insolent manner—knowingly or intentionally applied pressure to

       Sheila’s throat or neck, obstructed Sheila’s nose or mouth, or applied pressure

       to Sheila’s torso in a manner that impeded her normal breathing or blood

       circulation. Ind. Code § 35-42-2-9(c).


[11]   Martin-Shively only argues that the State failed to show that his actions

       impeded Sheila’s normal breathing or blood circulation. The record reveals that

       Sheila’s arms and neck had red marks after Martin-Shively “held [her] up

       against the wall . . . by [her] throat.” Tr. Vol. III p. 153. Given the

       uncontroverted testimony about these bright red marks, a reasonable jury could

       have concluded that for some brief period of time, Sheila’s normal breathing

       and/or circulation was impeded. See Perry v. State, 956 N.E.2d 41, 61 (Ind. Ct.

       App. 2011) (holding that evidence was sufficient to uphold strangulation

       conviction upon a showing that victim had “several abrasions to her neck” after

       assailant wrapped his hands around her neck).



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1146 | November 6, 2019   Page 5 of 10
[12]   Martin-Shively directs our attention to portions of Sheila’s testimony that he

       claims undercut this evidence. But this argument amounts to a request that we

       reweigh the evidence, which we may not do. The jury, which listened to the

       testimony and all the evidence firsthand, is in the best position to determine

       whether Sheila was credible and whether the evidence proffered was persuasive.

       In this case, we find that the evidence is sufficient.


                                       II. Double Jeopardy
[13]   Next, Martin-Shively argues that his separate convictions for criminal

       confinement and domestic battery with a prior conviction violate Indiana’s

       prohibition against double jeopardy.1 See generally Ind. Const. art. 1, § 14. We

       review questions of double jeopardy de novo, giving no consideration to the

       trial court’s decision below. Goldsberry v. State, 821 N.E.2d 447, 458 (Ind. Ct.

       App. 2005).


[14]   More specifically, Martin-Shively argues that there is a reasonable probability

       that the jury relied on the same facts to convict him of both criminal

       confinement and domestic battery with a prior conviction. Spivey v. State, 761

       N.E.2d 831, 833 (Ind. 2002). Under this “actual evidence” test, Martin Shively

       must show that there is “a reasonable probability that the evidentiary facts used

       by the fact-finder to establish the essential elements of one offense may also




       1
        Martin-Shively is only challenging the criminal confinement and domestic battery counts against him for
       harming Sheila, not A.B.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1146 | November 6, 2019               Page 6 of 10
       have been used to establish the essential elements of a second challenged

       offense.” Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999). There is no double

       jeopardy violation when the evidentiary facts establishing the essential elements

       of one offense satisfy many, but not all, of the essential elements of the second

       offense. Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013).


[15]   To convict Martin-Shively of Level 5 felony criminal confinement, the State

       was required to prove beyond a reasonable doubt that Martin-Shively

       knowingly or intentionally confined Sheila without her consent and that that

       confinement resulted in bodily injury to Sheila. I.C. § 35-42-3-3(a), -(b)(1)(C).

       To convict Martin-Shively of Level 6 felony domestic battery with a prior

       conviction, the State was required to prove beyond a reasonable doubt that

       Martin-Shively knowingly or intentionally touched Sheila, a family or

       household member, in a rude, insolent, or angry manner and that Martin-

       Shively had a prior, unrelated conviction for a battery offense. I.C. § 35-42-2-

       1.3(a)(1), -(b)(1)(A).


[16]   First, with regards to the criminal confinement conviction, the State proffered

       evidence that Martin-Shively wrapped his hands around Sheila’s neck and

       threatened to kill her and A.B. Martin-Shively continued doing this for several

       minutes and released Sheila only after she agreed to call the police. Martin-

       Shively’s actions left Sheila with red marks on her arms and neck. There is a

       reasonable probability that the jury relied on this evidence in convicting Martin-

       Shively of criminal confinement.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1146 | November 6, 2019   Page 7 of 10
[17]   On the other hand, with regards to the domestic battery conviction, the State

       also proffered evidence that as Sheila walked into the dining room, Martin-

       Shively jumped off the living room mattress and started chasing her. Sheila

       tried to avoid Martin-Shively, but he grabbed her by the shoulders and slammed

       her into the dining room wall. In other words, there was additional evidence in

       the form of multiple acts of violence—the grabbing, the shoving, the holding,

       and the slamming—that the jury likely used to establish the element that

       Martin-Shively touched Sheila in a rude, insolent, and angry manner.


[18]   As such, there is no reasonable probability that the jury may have relied on the

       same evidence for both convictions. Lee v. State, 892 N.E.2d 1231, 1236 (Ind.

       2008). Accordingly, Martin-Shively has not met his burden under the actual

       evidence test, and thus, there was no double jeopardy violation.


                                      III. Appropriateness
[19]   Finally, Martin-Shively argues that the aggregate sentence imposed by the trial

       court is inappropriate in light of the nature of the offenses and his character.


[20]   Indiana Appellate Rule 7(B) states that a “Court may revise a 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.” The question is not whether it is more appropriate to impose a

       different sentence, but whether the defendant’s specific sentence is appropriate.

       Steinberg v. State, 941 N.E.2d 515, 535 (Ind. Ct. App. 2011). The defendant


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1146 | November 6, 2019   Page 8 of 10
       bears the burden of persuading us that his sentence is inappropriate. Childress v.

       State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[21]   For a Level 5 felony offense, the maximum sentence is six years and the

       minimum sentence is one year. Ind. Code § 35-50-2-6(b). The advisory sentence

       is three years. Id. Here, the trial court sentenced Martin-Shively to five and one-

       half years for each Level 5 felony criminal confinement count. For a Level 6

       felony offense, the maximum sentence is two and one-half years and the

       minimum sentence is six months. I.C. § 35-50-2-7(b). The advisory sentence is

       one year. Id. Here, the trial court sentenced Martin-Shively to two years for

       each of the five Level 6 felony counts. The trial court subsequently ordered that

       all sentences be served concurrently, for an aggregate term of five and one-half

       years.


[22]   First, as to the nature of the offenses, Martin-Shively committed unprovoked2

       acts of violence against members of his own family. Martin-Shively repeatedly

       intimidated, threatened, and spanked A.B. multiple times and for several

       minutes, and he did not let up until Sheila intervened. A.B. even fled from her

       home because she feared Martin-Shively and the physical and emotional pain

       she would probably endure if she stayed. Then, on two separate occasions,

       Martin-Shively was successful at holding down his wife and stepdaughter and




       2
         Though A.B. and Martin-Shively were arguing just before the criminal offense took place, we would hardly
       classify the actions of a minor child as acts that would provoke the reasonable parent into doing what Martin-
       Shively did.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1146 | November 6, 2019                 Page 9 of 10
       strangling them. And Sheila’s testimony reveals the level of fear and unease that

       Martin-Shively instilled in the household, especially as he threatened Sheila

       with abandonment unless she called the police. Therefore, we find that the

       nature of the offenses does not render Martin-Shively’s sentence inappropriate.


[23]   Next, as to Martin-Shively’s character, Martin-Shively has a long criminal

       history. He has been charged with and convicted of criminal mischief, battery,

       invasion of privacy, disorderly conduct, perjury, and battery resulting in bodily

       injury. See Bailey v. State, 763 N.E.2d 998, 1004 (Ind. 2002) (holding that a

       history of criminal activity can reflect poorly on a defendant’s character at

       sentencing). And while the trial court imposed just below the maximum

       sentence for each count, it also ordered that Martin-Shively serve all his

       sentences concurrently, for an aggregate term of five and one-half years. We

       find it unwarranted to reduce Martin-Shively’s sentence when he only has to

       serve five and one-half years for seven different serious convictions, especially

       when he has been convicted of some of these same offenses in this past.

       Therefore, we find that Martin-Shively’s character does not render the sentence

       inappropriate. In sum, we will not revise Martin-Shively’s character pursuant to

       Indiana Appellate Rule 7(B).


[24]   The judgment of the trial court is affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1146 | November 6, 2019   Page 10 of 10
