MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 May 17 2019, 8:52 am
court except for the purpose of establishing
                                                                               CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ellen M. O’Connor                                       Curtis T. Hill, Jr.
Marion County Public Defender Agency                    Attorney General of Indiana
Indianapolis, Indiana
                                                        Samantha M. Sumcad
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Kenneth Wayne Ellis,                                    May 17, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1996
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Grant W.
Appellee-Plaintiff.                                     Hawkins, Judge
                                                        The Honorable Peggy Ryan Hart,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        49G05-1702-F5-7406



Barnes, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1996 | May 17, 2019                       Page 1 of 9
                                                  Case Summary
[1]   Kenneth Wayne Ellis appeals his convictions by bench trial of battery by means
                                                           1
      of a deadly weapon as a Level 5 felony and battery resulting in bodily injury as
                                              2
      a Class A misdemeanor. We affirm.



                                                          Issue
[2]   Ellis raises one issue, which we restate as whether there was sufficient evidence

      to support his convictions.



                                  Facts and Procedural History
[3]   Sabrina Clenna and Paulette Clenna are sisters-in-law. Sabrina is married to

      Paulette’s brother. In 2017, Paulette was dating and living with Ellis in an

      apartment located on the east side of Indianapolis approximately one and one-

      half blocks from Sabrina’s apartment.


[4]   On the early afternoon of February 22, 2017, Sabrina and Paulette were at

      Sabrina’s apartment, watching television and “[d]rinking and talking and

      having fun.” Tr. p. 23. They consumed alcohol from the early afternoon until

      eight o’clock p.m. but began to drink more heavily thereafter. Around eleven

      o’clock p.m., Paulette broke the antennae for the television. The two then left



      1
          Ind. Code §§ 35-42-2-1(c)(1), –(g)(2) (2016).
      2
          I.C. §§ 35-42-2-1(c)(1), –(d)(1).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1996 | May 17, 2019   Page 2 of 9
      Sabrina’s apartment and walked to Paulette’s apartment because “[Paulette]

      said she had an extra [antennae] at her house.” Id. at 26.


[5]   Ellis was in the apartment when Sabrina and Paulette arrived. Once at the

      apartment, Paulette continued to consume alcohol, but Sabrina stopped

      drinking. At some point, Ellis left the apartment and asked Sabrina to “keep an

      eye on Paulette because Paulette was intoxicated and she gets a little wild when

      she drinks.” Id. at 28.


[6]   While Ellis was gone, Sabrina realized that she had lost her cell phone. She

      wanted to call her husband to let him know she was at Paulette’s apartment.

      Sabrina left the apartment and “looked all over” the building for her phone. Id.

      at 29. She “figured [she] must have dropped it somewhere.” Id.


[7]   Her search ended in the laundry room located in the basement of the building.

      There she found her phone and Ellis. Ellis then “tried to come on to” Sabrina.

      Id. He told her that he liked her and that he wanted to be with her. Sabrina

      rebuffed his advances and told him, “[T]hat’s not the type of person I am.” Id.

      Though sisters-in-law, Sabrina saw Paulette as a biological sister.


[8]   Sabrina left the laundry room, returned to Paulette’s apartment, and told

      Paulette what had happened. Ellis entered the apartment a short time later. He

      first denied that he had made advances toward Sabrina, but, eventually, he

      confessed. Ellis and Paulette began to argue. Sabrina could not recall what

      happened immediately after the couple began to argue, however, she believed

      that at some point Ellis pushed her. She recalled fighting with Ellis,

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1996 | May 17, 2019   Page 3 of 9
       specifically, that he was “swinging at me and I was swinging back.” Id. at 31.

       Sabrina did recall “falling on the bed and kicking . . . Ellis off of me. . . . I

       kicked him backwards and we both fell to the floor.” Id. While Sabrina was on

       the floor, Ellis, who was wearing shoes, stomped on her face twice. Sabrina

       rolled under the bed in an attempt to escape from Ellis and then managed to

       stand. At that point, she saw Ellis standing before her holding a machete that

       had blood on it. Sabrina noticed that neither Ellis nor Paulette bore any cuts.

       Sabrina then went to the bathroom to examine herself. Her face was “just

       bloody” and was “starting to be puffy and there was just blood springing from

       everywhere.” Id. at 35. She did not see any cuts to her face. She did not recall

       being struck with the machete. However, she had a fleeting memory of Paulette

       hitting her in the face with a broomstick after she emerged from the bathroom.


[9]    Sabrina, in pain and now barefoot, left the apartment and walked back to her

       own apartment. It was after midnight and into the early hours of the next

       morning. As she walked to her apartment in the dark, she noticed a pain in her

       foot that felt as if her foot had been broken. She was familiar with the feeling

       because several years prior, she had broken her foot. The pain in her foot was

       so intense it took her ten to twenty minutes to ascend the steps to her

       apartment.


[10]   When Sabrina reached her apartment, her husband immediately called 911.

       After providing a statement to the responding Indianapolis Metropolitan Police

       Department (IMPD) officers, Sabrina was taken to the hospital where it was

       discovered that she had a gash on her forehead about one inch from her eye.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1996 | May 17, 2019   Page 4 of 9
       Medical personnel informed Sabrina that, if the cut to her forehead had been an

       inch closer to her eye, she would have “been blind or lost [her] eyeball.” Id. at

       41. She also was told that her foot had been cut through the bone. The gash on

       her forehead required “a lot of stitches.” Id. at 42. The cut to her foot required

       surgery to reseal the bone.


[11]   IMPD detective Christopher Winter went to the hospital to interview Sabrina

       and show her a “photo array” containing Ellis’s photograph. Id. at 73. He met

       with Sabrina before she received treatment and noticed that she was “lying on

       her back on a gurney with a neck brace on[,] bleeding from multiple spots on

       her body.” Id. at 74. Sabrina was able to identify Ellis from the photo array.


[12]   Meanwhile, IMPD officers went to Paulette’s apartment to investigate. Ellis

       was found lying on the floor underneath a blanket. Officers placed him in

       handcuffs. Officer Timothy Clark, who worked as an IMPD evidence

       technician, arrived at the apartment. He took photographs of the crime scene

       and of Ellis, and he recovered the machete. He observed broken glass on the

       floor, blood on the bed sheets, and blood stains on the white boxer shorts that

       Ellis wore. A broom was depicted in one of the photographs. Ellis was taken

       into custody.


[13]   On February 24, 2017, the State charged Ellis with Count I battery by means of

       a deadly weapon as a Level 5 felony, Count II battery resulting in serious bodily

       injury as a Level 5 felony, and Count III battery resulting in bodily injury, a




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1996 | May 17, 2019   Page 5 of 9
       Class A misdemeanor. On October 2, 2017, the State filed an habitual offender
                            3
       enhancement.


[14]   On May 10, 2018, Ellis waived his right to trial by jury and proceeded to a

       bench trial. He was found guilty as charged. On July 24, 2018, he pleaded

       guilty to being an habitual offender. The trial court merged count II with count

       I and imposed a sentence. This appeal followed.



                                      Discussion and Decision
[15]   Ellis argues that there was insufficient evidence to support his convictions

       because Sabrina was “insufficiently sober to recall how she sustained her

       injuries” and only “speculated” that her injuries were caused by Ellis’s use of a

       machete. Appellant’s Br. p. 8. He claims that Sabrina’s “spotty memory, due

       to her level of intoxication, points to an absence of evidence rather than a

       request to reweigh the evidence or an attack on the weight of her testimony.”

       Id. at 11.


[16]   In reviewing the sufficiency of the evidence, we consider only the evidence and

       reasonable inferences most favorable to the conviction, neither reweighing the

       evidence nor reassessing witness credibility. Griffith v. State, 59 N.E.3d 947, 958

       (Ind. 2016). We will affirm the judgment unless no reasonable factfinder could

       find the defendant guilty. Id. It is not necessary that the evidence overcome




       3
           Ind. Code § 35-50-2-8(a) (2015).


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1996 | May 17, 2019   Page 6 of 9
       every reasonable hypothesis of innocence; rather, the evidence is sufficient if an

       inference may reasonably be drawn from it to support the conviction. Drane v.

       State, 867 N.E.2d 144, 147 (Ind. 2007). “A verdict may be sustained based on

       circumstantial evidence alone if that circumstantial evidence supports a

       reasonable inference of guilt.” Maul v. State, 731 N.E.2d 438, 439 (Ind. 2000).


[17]   The Indiana Code provides that battery is a Level 5 felony when it is committed

       with “a deadly weapon.” Ind. Code § 35-42-2-1(g)(2). The Indiana Code

       further defines “deadly weapon” to mean, among other things, any “material

       that in the manner it: (A) is used; (B) could ordinarily be used; or (C) is

       intended to be used; is readily capable of causing serious bodily injury.” Ind.

       Code § 35-31.5-2-86(a)(2) (2012). And “serious bodily injury” is defined in

       relevant part as bodily injury that causes “extreme pain.” Ind. Code § 35-31.5-

       2-292(3) (2012). Battery is a Class A misdemeanor if it results in bodily injury.

       I.C. §§ 35-42-2-1(c)1, –(d)(1). “Bodily injury” is defined as any impairment of

       physical condition, including physical pain. Ind. Code § 35-31.5-2-29 (2012).


[18]   Here, the evidence established that Sabrina had been drinking heavily but

       stopped drinking after arriving at Paulette’s apartment. When she entered

       Paulette’s apartment, she had no cuts or gashes. Sabrina clearly recalled Ellis

       making a pass at her and then arguing with Paulette. Sabrina also recalled

       physically fighting with Ellis in an effort to get him off of her, falling to the

       floor, and enduring two stomps to the face by Ellis. Her next memory was of

       Ellis standing before her with a bloody machete in his hand. She recalled that

       both Ellis and Paulette were unharmed. An evidence technician found a

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1996 | May 17, 2019   Page 7 of 9
       machete at the scene of the crime and observed that Ellis had blood stains on

       the boxer shorts he wore.


[19]   Sabrina’s injuries were so severe that she required stitches for her forehead and

       surgery to reseal the bone in her foot. She remained in the hospital for three

       days and required twelve follow-up medical appointments. Sabrina testified

       that due to the injuries, she suffers from frequent migraines and cannot stand on

       her foot for longer than three hours at a time without suffering throbbing pain

       and swelling.


[20]   We acknowledge Sabrina does not precisely remember being cut on either her

       forehead or her foot and that she was made aware of the extent of her injuries

       by hospital personnel. Nevertheless, the evidence supporting the verdict gives

       rise to a reasonable inference that Ellis cut her forehead and foot with the

       machete. In sum, the evidence and reasonable inferences arising therefrom

       establish Ellis committed battery by means of a deadly weapon and battery

       resulting in bodily injury.


[21]   Ellis further argues that the evidence does not support his convictions because

       “[Sabrina] did not know how or why [Ellis] had a machete in his hands;” when

       she examined herself in the bathroom mirror, she did not detect a cut on her

       face; “Paulette . . . smacked her in the forehead with a broomstick afterwards;”

       “[Sabrina’s] right foot hurt, but she was in a room scattered with broken glass;”

       “[s]he walked home barefoot;” and “[t]he police did not examine the machete

       for blood.” Appellant’s Br. p. 9. We regard these arguments as a request to


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1996 | May 17, 2019   Page 8 of 9
       weigh the evidence and assess witness credibility, which we cannot do. See

       Sallee v. State, 51 N.E.3d 130, 134-35 (Ind. 2016) (circumstantial evidence

       sufficient to sustain convictions for murder).



                                               Conclusion
[22]   We find the State presented sufficient evidence to support Ellis’s convictions for

       battery by means of a deadly weapon and battery resulting in bodily injury.

       The judgment of the trial court is affirmed.


[23]   Affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1996 | May 17, 2019   Page 9 of 9
