Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                        Oct 22 2014, 9:45 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:

BRYAN M. TRUITT                                  GREGORY F. ZOELLER
Bertig & Associates, LLC                         Attorney General of Indiana
Valparaiso, Indiana
                                                 KATHERINE MODESITT COOPER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

BENJAMIN WILLIS, II,                             )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 64A03-1401-CR-30
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE PORTER SUPERIOR COURT
                         The Honorable Roger V. Bradford, Judge
                            Cause No. 64D01-1203-FA-2648



                                      October 22, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Benjamin Willis, II, appeals his conviction and sentence for battery as a class A

felony. Willis raises two issues, which we revise and restate as:

         I.   Whether the evidence is sufficient to sustain his conviction; and

        II.   Whether the court erred in sentencing him.

We affirm.

                        FACTS AND PROCEDURAL HISTORY

       On March 8, 2012, Sasha Sabates was living in Willis’s home with her young

children R.O. and K.F, born August 17, 2011. At approximately 11:30 a.m., Sabates

prepared a bath for her sons. During the bath, K.F. slipped and fell in the tub and hit his

head on the faucet. After she bathed the boys, Sabates brought K.F. to his room and began

to put him down for a nap. Sabates observed that K.F. was playing with toys and was

saying mama prior to his nap. She thought that K.F. was acting “perfectly normal” at that

time. Trial Transcript at 172. She prepared a bottle, and K.F. drank it and fell asleep

midway through the feeding. She observed that K.F. fell asleep normally and was sleeping

on the middle of a pillow in the crib. After K.F. had fallen asleep, Sabates took R.O. into

the master bathroom with her while she took a shower. While Sabates was showering,

Willis was in the master bedroom sleeping, and at one point Willis told Sabates that the

dogs were barking.

       Sabates exited the shower, wrapped herself in a towel, and went to the door to check

on the dogs. She noticed that the dogs were outside and encountered Willis’s mother,

Sharon, who walked into the home and was looking for Willis. Sharon followed Sabates

back to the bedroom. Sharon woke up Willis and discussed with him some custody issues

                                             2
he was having with the mother of his daughter. Willis then took a shower, dressed, and

left to buy soda and cigarettes at a nearby convenience store.

       Once Willis returned home, Sharon decided to leave, and Sabates returned to the

bathroom to apply makeup and “finish doing her hair.” Id. at 187. At that point, Sabates

was unsure if either Willis or Sharon was in the home. She looked at a clock in the master

bedroom and noticed that it was about 2:00 p.m., which was the time K.F. normally woke

from his naps, but “[she] didn’t hear anything on the baby monitor.” Id. at 188. Sabates

was preparing another bottle when Willis came into the house and said he heard K.F.

crying, although Sabates did not hear crying. Sabates stopped preparing the bottle, peeked

into K.F.’s room to check on him and did not hear crying. After Sabates finished making

the bottle, she returned to K.F.’s room to check on him again, and she “immediately noticed

that he was more paler [sic] than usual. He had vomit everywhere. And [she] noticed that

he was slightly pushed off [the pillow] more into the crib than usual.” Id. at 191. Sabates

observed that K.F.:

       wasn’t [breathing.] [She] looked at him and he made like a, it was a real
       quick like, uh, uh, uh, like this (indicating). And his eyes were like slightly
       shut. And they were dilated. [She] immediately noticed something was
       wrong, because when [she] picked him up [] he just flopped.

Id. at 192. Sabates noticed that K.F.’s head was “all mush.” Id. at 193. She stated that the

“back of his head . . . was concaved, or it was curved outwards. And . . . there was no

hardness in the back of his head, at all.” Id. She ran outside where she found Willis picking

up dog feces and told him to call 911. Willis called 911 from a neighbor’s house. Detective

Darryl Henson responded to the scene and observed that Willis’s demeanor lacked

emotion. Eventually, the ambulance arrived and took K.F. to Porter Hospital, and he was
                                             3
later airlifted to Riley Hospital for Children in Indianapolis for more tests. When Willis

was interviewed by the Detectives, he told them that while Sabates was showering and he

was in bed he “rolled over and noticed that the monitor was lit up, and he heard [K.F.]

fussing,” that he let Sabates know and that Sabates said she would take care of K.F. after

she finished her shower. Id. at 568. K.F. was pronounced dead on March 10, 2012, after

two days in the hospital.

       On March 16, 2012, the State charged Willis in a five count information with: Count

I, neglect of a dependent as a class A felony; Count II, battery as a class A felony; Count

III, battery as a class D felony; Count IV, torturing or mutilating a vertebrate animal as a

class D felony; and Count V, cruelty to an animal as a class A misdemeanor. On February

4, 2013, the court severed Counts IV and V.1                On November 12, 2013, the court

commenced a jury trial on Counts I through III at which the State presented the testimony

of, among others, Dr. Ralph A. Hicks, Sabates, Dr. Ken Obenson, Sharon, and Detective

Eric Jones.

       Dr. Hicks testified that his review of K.F.’s medical records indicated that K.F. fell

into a faucet in the bathtub on the day in question but that “[his] understanding was [that

K.F.] was sitting in the tub and then leaned or fell into the faucet, but . . . that would not

have been, or provided sufficient force to cause the head injuries that he had” because “a

baby who falls over from a sitting position in a bathtub is not going to fall with enough

force to cause a life-threatening internal injury.” Id. at 73-74. In concluding his direct




       1
          The severed charges were related to Willis’s treatment of his dogs and, potentially, another
person’s dog.
                                                  4
testimony, Dr. Hicks stated that “[he] fe[lt] that the injuries [K.F.] sustained were non-

accidental, or abusive in nature. . . . [T]he pattern of injuries, the type of injuries were

characteristic of abusive head trauma. There wasn’t any history of anything from the

medical evaluation to suggest any alternative explanation.” Id. at 78-79.

       Sabates testified to facts consistent with the foregoing, and, with respect to a slip or

fall that occurred earlier that day while Sabates was bathing K.F., she stated:

       [She] ben[t] down to pick up the towel and [she] wrap[ped] it here and
       pull[ed] him out. And when [she] [went] to pull out [K.F.], he d[id] like a,
       he lean[ed] forward and then to the side. It wasn’t, there was water still in
       the tub. He didn’t hit anything. No crying. No nothing. So [she] pick[ed]
       him up and then [she] wrap[ped] him up in a towel and then [she] [went] to
       the boys’ bedroom.

Id. at 166. Sabates also testified that she could not recall whether K.F. bumped his head or

not. She also indicated that she did not drop K.F., that K.F. did not fall out of her arms,

and that K.F. did not “squirm to get away.” Id. at 169.

       The State heard testimony from Dr. Ken Obenson, a forensic pathologist, who

indicated that the cause of death was “[b]lunt force trauma to the head.” Id. at 394. Dr.

Obenson also testified that the manner of K.F.’s death was “[h]omicide.” Id. Willis’s

mother, Sharon, testified during the trial to a version of the events leading up to the incident

that was consistent with Sabates’s description. Detective Jones, who spoke with both

Sabates and Willis, also testified consistent with Sabates’s testimony. Detective Jones

indicated that the timeline Sabates provided for that day did not change during the

investigation. He also interviewed Willis to verify Sabates’s version of events, and the

timeline provided by Willis was consistent with the one provided by Sabates.



                                               5
       On November 15, 2013, the jury found Willis guilty of Count I, neglect of a

dependent as a class A felony, and Count II, battery as a class A felony, and not guilty of

Count III, battery as a class D felony. On December 16, 2013, the court held a sentencing

hearing.   During the hearing, the State argued that the court should consider three

aggravating factors: (1) the victim was under twelve; (2) Willis committed a crime of

violence knowing that a person under eighteen was present; and (3) Willis was in a position

of trust with respect to the victim. Willis’s counsel argued that the first aggravator, age,

was an element of the offense and should receive minimal weight. His counsel further

argued that, as to the second aggravator, there was “no evidence whatsoever that this

offense [was committed] in front of, in the presence of this other minor child.” Sentencing

Transcript at 40. Willis’s counsel also stated that “the preparer of the pre-sentence report

has failed to list any mitigators” and argued Willis had “no history or minimal history with

regards to criminal activity.” Id. at 41. His counsel explained that, as to other criminal

activity, the charges involved “a pending matter in Lake County . . . that was . . . going to

be dismissed.” Id. at 41-42. He stated that because this conviction was Willis’s “first

conviction, including juvenile adjudications,” his lack of prior criminal history should be

a mitigator. Id. at 42. Counsel also argued that Willis’s imprisonment would lead to

hardship for his daughter and for his mother and should be considered as a mitigator.

Counsel further argued that Willis’s sentence should be suspended and argued that he be

placed on probation.

       After reviewing the presentence report, the court stated that even though “age [was]

an element of the offense . . . the extremely young age of the victim” supported the court’s

                                             6
decision that age was an aggravator. Id. at 44. The court found the fact that Willis stood

in a position of trust with respect to the victim was an aggravator, but it did not give “strong

weight” to Willis having committed the crime in the presence of a person under age

eighteen. Id. As to the proposed mitigators, the court stated that “he doesn’t have as much

a history of criminal activity as other defendants this court sees” but observed that the two

other counts under the charging information that had been severed for trial were “also

criminal activity.” Id. at 44-45. As a result, the court stated that to find lack of criminal

history as a mitigator “would be incorrect and I do not find that.” Id. at 45. As to support

of a dependent as a proposed mitigator, the court did not find that as a mitigator.

       In the sentencing order, the court stated that “by law, the two (2) guilty verdicts be

merged” and it entered “judgment of conviction on Count II, Battery, Class A Felony.”

Appellant’s Appendix at 188. The order further stated:

       The Court finds as aggravating circumstances: 1) the extreme young age of
       the victim; and 2) that Defendant was in a position of trust. The Court finds
       no mitigating circumstances. The Court begins with the advisory sentence
       of thirty (30) years. The Court finds that the aggravating outweigh the
       mitigating circumstances and adds ten (10) years for a total sentence of forty
       (40) years in the Indiana Department of Correction. None of the sentence is
       suspended.

Id.

                                        DISCUSSION

                                               I.

       The first issue is whether the evidence is sufficient to sustain Willis’s conviction for

battery as a class A felony. When reviewing claims of insufficiency of the evidence, we

do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656

                                               7
N.E.2d 816, 817 (Ind. 1995), reh’g denied. Rather, we look to the evidence and the

reasonable inferences therefrom that support the verdict. Id. We will affirm the conviction

if there exists evidence of probative value from which a reasonable trier of fact could find

the defendant guilty beyond a reasonable doubt. Id.

       Willis contends that the incredible dubiosity rule applies and that reversal is

warranted on that basis. In Willis’s Summary of the Argument section of his brief, he

makes the following assertions without citation to the record or authority: “there are severe

problems with Sabates’s testimony.        She is inconsistent with her statements to the

police. She is inconsistent with her confidences in friends. Her account violates any

concept of common sense. Her testimony is simply incredibly dubious.” Appellant’s Brief

at 6. Willis asserts that “[e]ven should this Court reject the obvious dubiosity of [Sabates’s]

testimony, the State’s theory does not meet common sense” and that “there is still

reasonable doubt as to [his] guilt, under any standard of review.” Id. In the Argument

section of the brief, however, beyond discussing the standard of review applicable to

insufficiency of the evidence and boilerplate statements of law regarding the incredible

dubiosity rule, the brief contains merely the heading “SABATES [sic] TESTIMONY WAS

INCREDIBLY DUBIOUS” followed by a single sentence: “In this case, the only recount

of the events on March 7-8, 2012 come [sic] from the testimony of Sabates.” Id. at 8.

Willis does not develop a cogent argument or cite to the record, and accordingly this issue

is waived. See Johnson v. State, 675 N.E.2d 678, 681 n.1 (Ind. 1996) (observing that the

defendant failed to cite to the record and “[o]n review, this Court will not search the record

to find grounds for reversal”); Keller v. State, 549 N.E.2d 372, 373 (Ind. 1990) (holding

                                              8
that a court which must search the record and make up its own arguments because a party

has presented them in perfunctory form runs the risk of being an advocate rather than an

adjudicator); see also Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006) (holding that

the defendant’s contention was waived because it was “supported neither by cogent

argument nor citation to authority”); Shane v. State, 716 N.E.2d 391, 398 n.3 (Ind. 1999)

(holding that the defendant waived argument on appeal by failing to develop a cogent

argument); Ind. Appellate Rule 46(A)(8)(a) (“The argument must contain the contentions

of the appellant on the issues presented, supported by cogent reasoning. Each contention

must be supported by citations to the authorities, statutes, and the Appendix or parts of the

Record on Appeal relied on, in accordance with Rule 22.”).

       Waiver notwithstanding, we note that the incredible dubiosity rule applies only in

very narrow circumstances. See Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). The rule

is expressed as follows:

       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.

Id. The function of weighing witness credibility lies with the trier of fact, not this court.

Whited v. State, 645 N.E.2d 1138, 1141 (Ind. Ct. App. 1995). Moreover, conflicts in

pretrial statements and trial testimony do not make a witness’s trial testimony incredibly

dubious. See Murray v. State, 761 N.E.2d 406, 409 (Ind. 2002).



                                             9
       During her testimony, Sabates provided a timeline and her observations of the day’s

events, which included waking and feeding her children, bathing them, putting K.F. down

for a nap, and taking a shower while Willis slept. Willis’s counsel cross-examined Sabates

at length about her observations regarding what occurred on the day of the incident and the

timeline of events, and called a witness who provided a different version of events from

that of Sabates.     In addition, we note that Sabates’s testimony was not wholly

uncorroborated and there was not a complete lack of circumstantial evidence in this case.

As noted, the State presented the testimony of Willis’s mother and Detective Jones, and

the State also presented evidence of K.F.’s injuries and expert testimony regarding the

cause of those injuries. Moreover, to the extent the testimony of Sabates was inconsistent

or conflicted with the testimony of other witnesses, the function of weighing witness

credibility lies with the jury as trier of fact, and the jury could determine whose testimony

was believable. See Whited, 645 N.E.2d at 1141. Willis does not show how Sabates’s

testimony was incredibly dubious.

       We cannot say that the testimony of Sabates regarding the timeline of events and

her observations was so inherently improbable that no reasonable person could believe it,

as Willis argues. Willis fails to point to any specific testimony of Sabates showing that her

testimony was somehow inherently inconsistent and has not shown that Sabates’s

testimony was incredibly dubious. Based upon our review of the evidence and testimony

most favorable to the conviction as set forth in the record and above, we conclude that

sufficient evidence exists from which the trier of fact could find Willis guilty beyond a

reasonable doubt of battery as a class A felony.

                                             10
                                              II.

       The next issue is whether the court erred in sentencing Willis. We observe that

Willis titles the applicable section of his brief as “Inappropriate Sentence,” and cites to Ind.

Appellate Rule 7(B), which provides that “[t]he Court may revise a sentence authorized by

statute 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.” Willis does not address either prong. Rather, the substance of his argument

concerns the court’s failure to identify his lack of criminal history as a mitigator which this

court addresses under an abuse of discretion in sentencing standard, which, as we have

repeatedly explained, is analyzed separately from the issue of whether a defendant’s

sentence is inappropriate. See, e.g., King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App.

2008) (observing that “an inappropriate sentence analysis does not involve an argument

that the trial court abused its discretion in sentencing the defendant”). Willis’s argument

that his sentence is inappropriate is waived. See Williams v. State, 891 N.E.2d 621, 633

(Ind. Ct. App. 2008); Ind. Appellate Rule 46(A)(8)(a); see also Cooper, 854 N.E.2d at 834

n.1; Shane, 716 N.E.2d at 398 n.3; Smith v. State, 822 N.E.2d 193, 202-203 (Ind. Ct. App.

2005) (“Generally, a party waives any issue raised on appeal where the party fails to

develop a cogent argument or provide adequate citation to authority and portions of the

record.”), trans. denied.

       To the extent Willis argues that the court failed to find his lack of a criminal history

as a mitigator, we note that sentencing decisions rest within the sound discretion of the trial

court and are reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868

                                              11
N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). A trial court

abuses its discretion if it: (1) fails “to enter a sentencing statement at all;” (2) enters “a

sentencing statement that explains reasons for imposing a sentence-including a finding of

aggravating and mitigating factors if any—but the record does not support the reasons;”

(3) enters a sentencing statement that “omits reasons that are clearly supported by the

record and advanced for consideration;” or (4) considers reasons that “are improper as a

matter of law.” Id. at 490-491. If the trial court has abused its discretion, we will remand

for resentencing “if we cannot say with confidence that the trial court would have imposed

the same sentence had it properly considered reasons that enjoy support in the record.” Id.

at 491. The determination of mitigating circumstances is within the discretion of the trial

court. Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct. App. 2007), trans. denied. The trial

court is not obligated to accept the defendant’s argument as to what constitutes a mitigating

factor, and a trial court is not required to give the same weight to proffered mitigating

factors as does a defendant. Id.

       To the extent that Willis suggests the trial court used his criminal history as an

aggravator, we observe that the court did not list his criminal history as an aggravator. The

court heard argument from Willis’s counsel on the issue of aggravators and mitigators and

concluded that Willis had a criminal history but no convictions. The record reveals that

Willis had pending misdemeanor charges of intimidation and harassment outstanding in

Lake County, as well as the severed counts initially charged, which the court referenced

when it declined to find his lack of criminal history as a mitigator. We cannot say that the

trial court abused its discretion when it found that Willis’s lack of criminal history was not

                                             12
a mitigating circumstance. See Stark v. State, 489 N.E.2d 43, 48 (Ind. 1986) (noting that

“[i]t is proper for a sentencing court to consider evidence of prior criminal conduct not

reduced to convictions as part of a defendant’s criminal history”); Williams v. State, 997

N.E.2d 1154, 1163-1164 (Ind. Ct. App. 2013) (observing that a trial court does not have to

explain why it does not find that a factor is a mitigating circumstance).

       Based upon the evidence presented at the sentencing hearing, we conclude that the

trial court did not abuse its discretion when it found that Willis’s lack of criminal history

was not a mitigating circumstance.

                                      CONCLUSION

       For the foregoing reasons, we affirm Willis’s conviction and sentence for battery as

a class A felony.

       Affirmed.

BARNES, J., and BRADFORD, J., concur.




                                             13
