MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                               Apr 07 2020, 9:23 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
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana
                                                         Robert L. Yates
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Cody Lee Bellamy,                                        April 7, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2654
        v.                                               Appeal from the Ripley Superior
                                                         Court
State of Indiana,                                        The Honorable Jeffrey Sharp,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         69D01-1809-F6-215



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2654 | April 7, 2020                Page 1 of 12
                                             Case Summary
[1]   A trial court convicted Cody Lee Bellamy of level 6 felony strangulation and

      class B misdemeanor battery. He now appeals his strangulation conviction,

      claiming that the victim’s testimony was incredibly dubious. He also challenges

      his two-year executed sentence, claiming that it is inappropriate in light of the

      nature of his offenses and his character. We affirm.


                                 Facts and Procedural History
[2]   In May 2018, Bellamy began a romantic relationship with J.M., whom he had

      met at work. At that time, Bellamy was on probation for a 2016 burglary

      conviction. By mid-summer, he had moved into J.M.’s efficiency apartment.

      He lost his job when he was pulled over and arrested for driving on a suspended

      license, and J.M. resigned her position shortly thereafter. J.M.’s mother lived

      nearby, paid J.M.’s rent and utilities, and visited often.


[3]   On September 8, 2018, J.M. told Bellamy that their relationship was over. At

      his urging, she allowed him to stay at the apartment for another week while he

      searched for new accommodations. That evening, the two twenty-year-olds

      drank alcoholic beverages that Bellamy had purchased. Bellamy became very

      angry over text messages and a phone call that J.M. received from another man

      and called her a “stupid b*tch” and a liar. Tr. Vol. 2 at 22. He grabbed her dog

      by the scruff of its neck and threw it across the room. J.M. picked up her dog

      and attempted to leave the apartment, but Bellamy slammed the door on J.M.’s

      hand, injuring it and cracking her phone screen. J.M. slapped Bellamy’s face


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2654 | April 7, 2020   Page 2 of 12
      three times, and he punched her once in the face and twice in her abdomen. At

      one point, he put her in a chokehold between his bicep and forearm, and she

      could not breathe. When she screamed for help, he momentarily grabbed a

      butter knife and threatened to kill her. He took her phone outside and told her

      that he had discarded it so that she would have no way of contacting anyone.


[4]   Shortly thereafter, J.M. again attempted to make a “run for it,” and exited the

      apartment. Id. at 29. By this time, it was dark and rainy outside. As J.M. ran,

      Bellamy chased her down and tackled her to the ground. In the ensuing

      struggle, her fingernail was torn off. While she was still on the ground, Bellamy

      held her in a chokehold between his bicep and forearm until she briefly lost

      consciousness. When she regained consciousness, Bellamy forced her back

      inside the apartment and made her change his wet clothes for him and change

      her own clothes in front of him. She described his demeanor as going back and

      forth from extremely angry to apologetic to weepy. He forced her to hold him

      in her lap on the couch for what seemed like a long while; then, without

      explanation or comment, he got up and walked out of the apartment. Shortly

      thereafter, J.M. found her phone (which Bellamy had actually hidden inside the

      apartment) and exited the apartment through a previously barricaded back

      door.


[5]   Once outside, J.M. phoned her mother, Daisy, who hurried over to J.M.’s

      apartment. The two then drove to Daisy’s home. As they pulled in the

      driveway, they saw Bellamy approaching, riding very fast on a bicycle. The

      two women rushed in through the back door, locked it, and made 911 calls.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2654 | April 7, 2020   Page 3 of 12
      Meanwhile, Bellamy stood outside the back door, yelling and banging his head

      repeatedly against the double-paned glass portion of the door. The outer pane

      broke, and Bellamy’s forehead bled on the glass and the porch. When Bellamy

      saw police lights approaching, he fled on foot. Town Marshal Ron Buchanan

      tended to the distraught women as they briefly recounted what had occurred.

      Marshal Buchanan observed J.M.’s injuries to her face, legs, arms, and neck,

      and officers took photographs of these injuries. Marshal Buchanan, who had

      previously worked thirty-six years as a paramedic, noted that the redness on

      J.M.’s neck was consistent with a person who had been choked between a bicep

      and a forearm.


[6]   Marshal Buchanan accompanied J.M. and Daisy back to J.M.’s apartment. He

      searched the apartment and instructed them to lock the door when he left.

      Minutes later, Bellamy banged on the door, identified himself as an officer, and

      instructed the women to open the door. Daisy approached the door, but J.M.

      recognized the voice as Bellamy’s and told her not to open it. They called 911,

      and Marshal Buchanan returned. By that time, Bellamy had fled, and his

      whereabouts were unknown, so the marshal advised the women to leave town.

      They stayed three nights in a nearby town with Daisy’s boyfriend and returned

      once Bellamy had been apprehended.


[7]   The State charged Bellamy with level 6 felony strangulation and class A

      misdemeanor domestic battery. Bellamy waived his right to a jury trial, and a

      bench trial ensued. The trial court convicted Bellamy of level 6 felony

      strangulation, and although the court specifically found that the evidence

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2654 | April 7, 2020   Page 4 of 12
      supported a conviction for class A misdemeanor domestic battery, the substance

      of the charging information was insufficient to support the charge. As a result,

      the court convicted Bellamy of battery as a class B misdemeanor.


[8]   At sentencing, the trial court identified as aggravators Bellamy’s juvenile and

      adult criminal history and his repeated violations of his placements. The court

      also considered the fact that Bellamy was on probation for a burglary

      conviction and was out on bond for unrelated charges when he committed the

      current offenses. The court characterized the protracted nature of the current

      offenses as a “night of terror.” Id. at 195. As mitigators, the court noted

      Bellamy’s family support and desire to provide for his current girlfriend and her

      child. The court sentenced Bellamy to a two-year executed term for

      strangulation and a concurrent 180-day term for battery, plus a civil restitution

      order for $600. Bellamy now appeals. Additional facts will be provided as

      necessary.


                                     Discussion and Decision

         Section 1 – The evidence is sufficient to support Bellamy’s
                 conviction for level 6 felony strangulation.
[9]   Bellamy challenges the sufficiency of the evidence to support his strangulation

      conviction. When reviewing a challenge to the sufficiency of evidence, we

      neither reweigh evidence nor judge witness credibility. Moore v. State, 27

      N.E.3d 749, 754 (Ind. 2015). Rather, we consider only the evidence and

      reasonable inferences most favorable to the verdict and will affirm the


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2654 | April 7, 2020   Page 5 of 12
       conviction unless no reasonable factfinder could find the elements of the crime

       proven beyond a reasonable doubt. Id. Reversal is appropriate only when

       reasonable persons would be unable to form inferences as to each material

       element of the offense. McCray v. State, 850 N.E.2d 998, 1000 (Ind. Ct. App.

       2006), trans. denied. The evidence need not “overcome every reasonable

       hypothesis of innocence.” Dalton v. State, 56 N.E.3d 644, 647 (Ind. Ct. App.

       2016) (citation omitted), trans. denied.


[10]   To convict Bellamy of level 6 felony strangulation, the State was required to

       demonstrate beyond a reasonable doubt that he (1) knowingly or intentionally,

       and (2) in a rude, angry, or insolent manner, (3) applied pressure to J.M.’s

       throat or neck in a manner that impeded J.M.’s normal breathing or blood

       circulation. Ind. Code § 35-42-2-9(c). Bellamy asks that we impinge on the

       province of the trial court as factfinder and reassess J.M.’s credibility pursuant

       to the “incredible dubiosity” rule. According to this rule,


               If a sole witness presents inherently improbable testimony and
               there is a complete lack of circumstantial evidence, a defendant’s
               conviction may be reversed. This is appropriate only where the
               court has confronted inherently improbable testimony or coerced,
               equivocal, wholly uncorroborated testimony of incredible
               dubiosity. Application of this rule is rare and the standard to be
               applied is whether the testimony is so incredibly dubious or
               inherently improbable that no reasonable person could believe it.


       Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007) (citations omitted). For this

       rule to apply, there must be a sole testifying witness, testimony that is inherently



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2654 | April 7, 2020   Page 6 of 12
       contradictory, equivocal, or coerced, and a complete absence of circumstantial

       evidence. Moore, 27 N.E.3d at 756.


[11]   J.M. was not the sole testifying witness, and her testimony was neither

       contradictory nor equivocal. She unwaveringly recounted the events at the

       apartment, which included Bellamy’s headlock hold around her neck both

       inside the apartment and later outside after he tackled her to the ground from

       behind. Tr. Vol. 2 at 69. This latter incident involved a stranglehold so tight

       that J.M. temporarily lost consciousness. Marshal Buchanan, who had thirty-

       six years’ experience as a paramedic, testified that he observed redness on

       J.M.’s neck consistent with having been placed in a stranglehold between a

       person’s bicep and forearm. He explained J.M.’s development of petechiae,

       which is redness caused when the small blood vessels in the eyes burst due to

       the compression of large blood vessels such as those in the neck. J.M.’s

       testimony that her eyes became more bloodshot in the days following the attack

       was supported by Marshal Buchanan, who explained that this type of injury

       becomes more noticeable in the days after a strangulation. The only

       contradiction was Bellamy’s denial that he strangled her. Simply put, the

       nature and corroboration of J.M.’s testimony do not support the application of

       the incredible dubiosity rule to this appeal. The trial court, as trier of fact,

       found J.M. to be credible and Bellamy to lack credibility. We decline Bellamy’s

       invitation to reassess credibility, and find the evidence sufficient to support

       Bellamy’s strangulation conviction.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2654 | April 7, 2020   Page 7 of 12
       Section 2 – Bellamy has failed to demonstrate that his sentence
         is inappropriate in light of the nature of the offense and his
                                   character.
[12]   Bellamy asks that we reduce his sentence pursuant to 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.” “Sentencing 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). When a defendant requests appellate

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

       sentence. Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010).


[13]   In conducting our review, our principal role is to leaven the outliers, focusing

       on the length of the sentence and how it is to be served. Bess v. State, 58 N.E.3d

       174, 175 (Ind. 2016); Foutch v. State, 53 N.E.3d 577, 580 (Ind. Ct. App. 2016).

       This allows for consideration of all aspects of the penal consequences imposed

       by the trial court in sentencing, i.e., whether it consists of executed time,

       probation, suspension, home detention, or placement in community

       corrections. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). 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.’” Foutch, 53 N.E.3d at 581 (quoting Barker v. State, 994 N.E.2d

       306, 315 (Ind. Ct. App. 2013), trans. denied (2014)). The defendant bears the


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2654 | April 7, 2020   Page 8 of 12
       burden of persuading this Court that his sentence meets the inappropriateness

       standard. Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016).


[14]   In considering the nature of Bellamy’s offenses, “the advisory sentence is the

       starting point the Legislature has selected as an appropriate sentence.” Green v.

       State, 65 N.E.3d 620, 637-38 (Ind. Ct. App. 2016), trans. denied (2017). When

       determining the appropriateness of a sentence that deviates from an advisory

       sentence, we consider whether there is anything more or less egregious about

       the offense as committed by the defendant that “makes it different from the

       typical offense accounted for by the legislature when it set the advisory

       sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011).


[15]   The trial court sentenced Bellamy to an aggregate two-year executed sentence,

       comprising a two-year executed term for his level 6 felony conviction and

       concurrent 180-day term for his class B misdemeanor conviction. A level 6

       felony carries a sentencing range of six months to two and one-half years with a

       one-year advisory term. Ind. Code § 35-50-2-7. A class B misdemeanor carries

       a sentence of not more than 180 days and a fine of not more than $1000. Ind.

       Code § 35-50-3-3.


[16]   In examining the nature of Bellamy’s offenses, we cannot ignore the trial court’s

       characterization of the events as a “night of terror,” with three separate

       backdrops and multiple violent outbursts. Tr. Vol. 2 at 195. In the throes of his

       anger and jealousy, Bellamy first went after J.M.’s dog, throwing it across the

       room. When J.M. sought to leave, Bellamy refused to allow it and slammed


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2654 | April 7, 2020   Page 9 of 12
       the door on her hand, injuring her and damaging her phone. When she slapped

       his face, he upped the ante, punching her with his fist, first in the face and then

       twice in the abdomen. He placed her in a chokehold, and she could not

       breathe. He threatened her with a butter knife, and when she again tried to

       leave the apartment, he followed her out into the rain and tackled her from

       behind. In her beleaguered yet desperate struggle, her fingernail tore

       completely off. She testified that she thought Bellamy was going to kill her. Id.

       at 32. Bellamy placed her in a prolonged stranglehold between his bicep and

       forearm, “squeezing tighter and tighter” until she passed out. Id. at 69. After

       she revived, he humiliated her by forcing her inside the apartment to undress

       and dress in front of him and to do the same for/to him. He then forced her to

       hold him in her lap for what seemed like a long time. Then, without a word, he

       simply got up and left. This precipitated J.M.’s exit and call to Daisy, who

       drove her to her house.


[17]   But the night was not over. Bellamy followed the women to Daisy’s house and

       banged his head on the glass door until the outer pane broke, with shards of

       glass causing blood to drip onto the door and porch. Daisy recounted that

       every time Bellamy banged his head, she could see the inside doorframe

       separating from the wall. Id. at 80. She described J.M. as traumatized and

       herself as “scared to death.” Id. at 81. It was the approaching police lights that

       caused Bellamy to stop and flee the scene. But again the night was not over.

       Bellamy waited until the women returned to J.M.’s apartment and the marshal

       left; then, pretending to be a police officer, he ordered them to open the door.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2654 | April 7, 2020   Page 10 of 12
       The 911 calls underscore the terror of the night, as Bellamy followed the

       frightened women from place to place. In short, the “whole” of the night was

       greater than the sum of its parts. The night was rife with other uncharged

       conduct by Bellamy, and it was the deficient charging information, not the

       strength of the evidence, that limited Bellamy’s battery conviction to a class B

       misdemeanor instead of the more serious original charge of domestic battery.

       The nature of Bellamy’s offenses simply does not militate toward a shorter

       sentence, nor does Bellamy’s character.


[18]   We conduct our review of his character by engaging in a broad consideration of

       his qualities. Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on

       other grounds on reh’g, 11 N.E.3d 571. “When considering the character of the

       offender, one relevant fact is the defendant’s criminal history.” Garcia v. State,

       47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied (2016). Bellamy is

       relatively young, just twenty-one years old at the time of sentencing, yet his

       criminal history is already lengthy. His entanglements with the juvenile system

       began during his early teens and include adjudications for conduct amounting

       to auto theft and criminal mischief if committed by an adult. He ran away from

       a juvenile detention facility during one of his commitments. His adult history

       includes a conviction for level 5 felony burglary and a conviction for driving

       while suspended. After having served a portion of his burglary conviction in

       the DOC, he was released to home detention but was remanded to the DOC for

       multiple violations, including failure to report for drug screens and community

       service, having alcohol in his residence, and leaving the residence without


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2654 | April 7, 2020   Page 11 of 12
       permission. He later was placed on probation, only to have it revoked when he

       committed new criminal offenses. Shortly before he committed the current

       offenses, he was charged with domestic battery of a different girlfriend (later

       dismissed) and driving while suspended. When he committed the current

       offenses, he was serving probation in one cause and was released on bond in

       another cause. Bellamy now claims that he is a changed person and asks for

       probation so that he can work to provide financial support for his current

       girlfriend and her child. However, his failure to abide by the law and by the

       rules of his placements does not bode well for future placement in sentencing

       programs outside the DOC.


[19]   Bellamy also has a history of drug use. He admitted that he used marijuana

       from ages fourteen to eighteen and methamphetamine from ages sixteen to

       seventeen. Although he was only twenty years old, he purchased and

       consumed alcoholic beverages immediately before he committed the current

       offenses. His character simply does not merit a reduced sentence. Based on the

       foregoing, we conclude that Bellamy has failed to meet his burden of

       demonstrating that his sentence is inappropriate. Consequently, we affirm it.


[20]   Affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2654 | April 7, 2020   Page 12 of 12
