Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                     Sep 10 2014, 9:05 am
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:

BERNICE A.N. CORLEY                                GREGORY F. ZOELLER
Indianapolis, Indiana                              Attorney General of Indiana

                                                   KATHERINE MODESITT COOPER
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

JAY SLEET,                                         )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )        No. 49A02-1311-CR-997
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Kurt M. Eisgruber, Judge
                          The Honorable Steve Rubick, Magistrate
                            Cause No. 49G01-1208-FC-57166


                                       September 10, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                   STATEMENT OF THE CASE

          Appellant/Defendant, Jay Sleet (“Sleet”), appeals his conviction for Class C felony

battery1 and the trial court’s refusal to award him credit for time served on pre-trial home

detention. He argues that the evidence supporting his conviction is insufficient because it

was based on the testimony of one witness, whom he claims was not credible. He also

contends that the trial court abused its discretion by refusing to award him credit for his

time served on pre-trial home detention because the trial court thought he had violated the

terms of his home detention, and he claims that he had not. We affirm the trial court’s

judgment because there was sufficient evidence to support Sleet’s conviction. We also

affirm the trial court’s sentence because it was within the trial court’s discretion to refuse

to award Sleet credit for his time served on pre-trial home detention.

          We affirm.

                                            ISSUES

          1. Whether there was sufficient evidence to support Sleet’s conviction for
             Class C felony battery.

          2. Whether the trial court abused its discretion when it refused to award
             Sleet credit for time he served on pre-trial home detention.

                                            FACTS

          Sleet started dating Colette Lanter (“Lanter”) in October or November of 2011,

and they were still dating in August of 2012. On August 17, 2012, Lanter got off of work

from her job in downtown Indianapolis around 10 or 11 p.m. Sleet met her at her work,




1
    IND. CODE § 35-42-2-1(a)(3) (2012).
                                               2
and they walked to a bar downtown. At the time, Lanter could tell that Sleet was

intoxicated and “louder than usual.” (Tr. 48).

       When they arrived at the bar, Lanter ordered a couple of drinks for them and then

received a text from her roommate, Lavon Tomlin (“Tomlin”). Tomlin’s car was out of

gas, and he asked Lanter if he could borrow a few dollars. Lanter responded that she was

about to go to the Pub, another bar downtown, and that Tomlin could meet her there and

pick up some money. Sleet asked Lanter who she was texting and then, when Lanter told

him, Sleet got upset and spilled Lanter’s drink in her lap. In response, Lanter told Sleet

that she would see him later and left to go to the Pub. Sleet followed her there.

       When Lanter and Sleet arrived at the Pub, Chris Brown (“Brown”), a bartender at

the Pub and former co-worker of Lanter’s, noticed that they “were bickering—kind of

arguing as they came in.” (Tr. 67). However, it was around midnight, which was when

Brown’s shift ended, so he did not serve them any drinks.            Dustin Joe Donovan

(“Donovan”), another bartender at the Pub, served Lanter and Sleet drinks and noticed

that they were not interacting much and “seemed to not be [] getting along great at the

time . . . .” (Tr. 60). They were arguing because Sleet “kept repeatin[g himself],” and

Lanter “was getting[g] irritated.” (Tr. 51). As a result, Lanter went outside to talk to

some of her friends. Sleet followed her and continued arguing, so Lanter went back

inside and started to take shots with a friend.

       Later, Lanter again went outside to talk to some friends. However, she did not

remember anything after that point until she woke up in a hospital. Brown was also

outside with Tomlin and a few of Lanter’s other friends. Brown was talking to Tomlin

                                              3
when he heard Lanter and Sleet arguing. Then, he heard “what was either a smack or a

hit” that sounded like “skin hitting skin.” (Tr. 69). He looked up and saw that Sleet had

Lanter “by the back of the neck and slammed her into the ground a couple of times.” (Tr.

69). All of the friends reacted, and several of the friends went to help Lanter, although no

one else remembered seeing how Lanter got injured. Tomlin restrained Sleet while

Brown ran inside, told Donovan to call 9-1-1, and grabbed towels for Lanter, who was

bleeding profusely. Lanter had a gash on her head, and there was a “massive puddle” of

blood under her. (Tr. 71).

       Police officer Christopher Faulds (“Officer Faulds”) with the Indianapolis

Metropolitan Police Department responded to the scene and observed that Lanter “had

some blood on her clothes and some cuts to her face.” (Tr. 38). He tried to get a

response from her, but she was “not very lucid.” (Tr. 38). Sleet was also unresponsive

and unwilling to speak. However, the limited number of words he spoke to Officer

Faulds were slurred. He was also unsteady on his feet, had a strong odor of an alcoholic

beverage on him, and had bloodshot eyes. As a result, Officer Faulds arrested him for

public intoxication. He later also arrested Sleet for disorderly conduct and battery.

       Subsequently, on August 22, 2012, the State charged Sleet with Class C felony

battery. On August 31, 2012, the trial court released Sleet to pre-trial home detention.

Sleet waived his right to a jury trial, and the trial court held a bench trial on October 2,

2013. At the trial, Brown testified that he had seen Sleet slam Lanter’s head into the

ground a couple of times. He also testified that he did not drink any alcohol between

midnight, when he officially ended his shift, and approximately 2:30 a.m., when Lanter’s

                                             4
injuries occurred. At the conclusion of the trial, the trial court found Sleet guilty as

charged.

      On October 22, 2013, the trial court held a sentencing hearing and sentenced Sleet

to four (4) years, with two (2) years executed at the Department of Correction. The trial

court also credited Sleet with forty-one days served prior to sentencing. However, the

trial court refused to credit Sleet for time he served on home detention before trial. Its

reasoning was that Sleet had violated his home detention. Sleet asserted that he had not

violated his home detention but had actually had a mechanical issue with the box that

Community Corrections gave him. Sleet claimed that he had brought the problem to

Community Corrections’ attention and had sorted it out. In response, the trial court said

it would e-mail Community Corrections and consider awarding Sleet credit for his pre-

trial home detention time if Community Corrections confirmed his story. Sleet now

appeals. We will provide additional information as necessary.

                                       DECISION

      On appeal, Sleet argues that there was insufficient evidence to support his

conviction for battery and also that the trial court should have credited him with time he

served on pre-trial home detention. We will address each of these issues in turn.

1. Sufficiency of the Evidence

      The standard of review for sufficiency of the evidence claims is that this Court

should reverse a conviction only when reasonable persons would not be able to form

inferences as to each material element of the offense. Perez v. State, 872 N.E.2d 208,

212-13 (Ind. Ct. App. 2007), trans. denied. We do not reweigh evidence or judge the

                                            5
credibility of witnesses. Id. at 213. In addition, we only consider the evidence most

favorable to the verdict and the reasonable inferences stemming from that evidence. Id.

       In order to convict Sleet of battery, the State was required to prove beyond a

reasonable doubt that he “knowingly or intentionally touch[ed] another person in a rude,

insolent or angry manner” that “result[ed] in serious bodily injury.” I.C. § 35-42-2-

1(a)(3) (2012). A person engages in conduct “knowingly” if, when he engages in the

conduct, he is aware of a high probability that he is doing so. I.C. § 35-41-2-2.

       Sleet’s claims there was insufficient evidence to support his conviction because

Brown’s testimony that Sleet grabbed Lanter “by the back of the neck and slammed her

into the ground a couple of times” was not credible. (Tr. 69). Specifically, he argues that

it was “highly improbable” that Brown hung out at the bar for three hours after his shift

ended without drinking. (Sleet’s Br. 12). He also claims that Brown’s testimony is not

credible because he did not tell Officer Faulds what he had witnessed on the night in

question.

       We are not persuaded by Sleet’s arguments because both are invitations to judge

the credibility of a witness, which we will not do. See Perez, 872 N.E.2d at 213.

Moreover, Sleet does not cite to anywhere in the transcript where Officer Faulds stated

that Brown did not tell him what he had witnessed. To the contrary, Officer Faulds

testified that he “spoke to several of the witnesses that were also gathered in the parking

lot and [] was able to get an idea of what had occurred.” (Tr. 39). Therefore, since

Brown’s testimony provided evidence to prove that Sleet committed battery and he does



                                             6
not otherwise dispute the sufficiency of the evidence, we conclude that there was

sufficient evidence to support his conviction.

2. Credit Time

        Next, Sleet contends that he served 390 days on pre-trial home detention and that

the trial court abused its discretion when it refused to award him credit for serving this

time.    He claims that the trial court intended to grant him credit if Community

Corrections confirmed that he had not violated the terms of his home detention. In

addition, he argues that his counsel’s argument that the alleged violation was merely an

equipment malfunction was evidence in and of itself that there was not a violation. Sleet

requests us to remand this issue to the trial court to determine whether there was a

violation and award him credit time if there was not.

        It is well-established that because pre-sentence jail time credit is a matter of

statutory right, trial courts generally do not have discretion in awarding or denying such

credit. Molden v. State, 750 N.E.2d 448, 449 (Ind. Ct. App. 2001). However, because

credit for pre-trial home detention is not a statutory right, an award of credit for time

served on pre-trial home detention is within the discretion of the trial court and will be

reversed only upon a showing of an abuse of that discretion. Id. The reasoning behind

this rule is that “time spent in home detention is not identical to time spent in jail or

prison.” Id. at 451 (discussing Capes v. State, 615 N.E.2d 450 (Ind. Ct. App. 1993)).

Instead, “only when a person has been confined in a prison, county jail, or any facility

which imposes substantially similar restrictions upon personal liberty is a person entitled

to credit against his sentence for time served prior to trial.” Id. We will find that a trial

                                             7
court has abused its discretion only when its decision is “clearly against the logic and

effect of the facts and circumstances before the court, or the reasonable, probable, and

actual deductions to be drawn therefrom.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

2007), clarified on reh’g, 875 N.E.2d 218.

       Here, there is evidence in the record that Sleet did violate the conditions of his

home detention.     The Chronological Case Summary indicates that he violated his

detention on July 18, 2013. Sleet relies entirely on his counsel’s self-serving claims that

he did not violate his detention as proof of his compliance.

       Regardless of whether a violation occurred, though, the trial court did not, as Sleet

contends, agree to award him credit time if Community Corrections confirmed his story.

Instead, the trial court told Sleet that it would “consider” awarding him time. (Tr. 108).

Based on the trial court’s silence in the record after the sentencing hearing, we must

conclude that the trial court decided not to award Sleet time. This decision was within its

discretion, and Sleet has not provided us with any evidence to support his argument that

the trial court abused its discretion. As stated above, a person is entitled to credit only

when he or she has been confined to “a prison, county jail, or any facility which imposes

substantially similar restrictions upon personal liberty.” Molden, 750 N.E.2d at 451.

Sleet has not provided any evidence that the terms of his home detention imposed

restrictions upon his personal liberty substantially similar to a prison. Accordingly, we

conclude that the trial court’s decision not to award him credit for his time served on

home detention was not against the logic and effect of the facts and circumstances before

it and, thus, was not an abuse of discretion.

                                                8
      Affirmed.

NAJAM, J., and BAILEY, J., concur.




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