Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited                             FILED
before any court except for the purpose                     Nov 27 2012, 8:53 am
of establishing the defense of res
judicata, collateral estoppel, or the law                          CLERK
                                                                 of the supreme court,
of the case.                                                     court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

JANE H. CONLEY                                   GREGORY F. ZOELLER
Indianapolis, Indiana                            Attorney General of Indiana

                                                 IAN MCLEAN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

NICOLE MEANS,                                    )
                                                 )
        Appellant-Defendant,                     )
                                                 )
               vs.                               )    No. 49A02-1205-CR-391
                                                 )
STATE OF INDIANA,                                )
                                                 )
        Appellee-Plaintiff.                      )


                        APPEAL FROM THE MARION SUPERIOR COURT
                               The Honorable Amy Barbar, Judge
                               Cause No. 49G02-1107-FC-50196


                                      November 27, 2012

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

       Nicole Means appeals her conviction and sentence for Class B felony aggravated

battery. We affirm.

                                           Issues

       Means raises two issues, which we restate as:

              I.      whether there is sufficient evidence to support her
                      conviction; and

              II.     whether her sentence is inappropriate.

                                           Facts

       For an extended period of time, Means and Ebony Bennett both dated Joseph

Haywood. On July 6, 2011, Bennett was at her home in Indianapolis with her cousin and

brother when she began calling Means from her cousin’s cellphone. Eventually, Means

drove to Bennett’s home, pulled into the driveway, announced her arrival, and started to

get out of the car. Bennett, who had been holding a golf club, threw the golf club to the

ground while Means was in the driveway. Means then got back in the car and backed out

of the driveway. Means pointed the car at an angle toward Bennett, who was standing on

the sidewalk, accelerated, ran over Bennett’s leg, and drove away. Bennett’s injuries

required two surgeries, a two-week hospital stay, and physical therapy.

       On July 15, 2011, the State charged Means with Class C felony battery and later

with Class B felony aggravated battery. At the beginning of the April 4, 2012 bench trial,

the trial court granted the State’s motion to dismiss the Class C felony battery charge.

After the trial, the trial court found Means guilty of Class B felony aggravated battery.


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       In sentencing Means, the trial court considered her juvenile adjudication for

battery as an aggravator. As mitigators, the trial court considered the fact that this was

Means’s first adult conviction, that she was remorseful, and that long-term imprisonment

would be a hardship on Means’s daughter. The court concluded that the mitigators

outweighed the aggravators and sentenced Means to six years, with four years to be

served in the Department of Correction (“DOC”) and two years to be served in a

community corrections program. Means now appeals.

                                         Analysis

                                      I. Sufficiency

       Means argues that there is not sufficient evidence to support her conviction. In

reviewing the sufficiency of the evidence, we do not reweigh the evidence or judge the

credibility of the witnesses, and we respect a fact-finder’s exclusive province to weigh

conflicting evidence. Joslyn v. State, 942 N.E.2d 809, 811 (Ind. 2011). We consider

only the probative evidence and reasonable inferences supporting the verdict, and we will

affirm if the probative evidence and reasonable inferences drawn from the evidence could

have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable

doubt. Id.

       To convict Means of aggravated battery, the State was required to prove that she

knowingly or intentionally inflicted injury on Bennett that caused protracted loss or

impairment of the function of her leg. See Ind. Code § 35-42-2-1.5. “A person engages

in conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious objective

to do so.” I.C. § 35-41-2-2(a). “A person engages in conduct ‘knowingly’ if, when he

                                             3
engages in the conduct, he is aware of a high probability that he is doing so.” I.C. § 35-

41-2-2(b).

       Means argues that the evidence is insufficient to establish that she acted

knowingly or intentionally. In support of her argument, Means points to her testimony

that, when she saw Bennett approaching with the golf club as she was backing out of the

driveway, she panicked, “hit the gas,” and ended up on the grass. Tr. p. 105. She

suggests that the incident happened quickly and that she was using her car to escape a

frightening situation.

       This argument is largely a request to reweigh the evidence, and we decline to do

so. The evidence most favorable to the conviction shows that Means had previously

threatened Bennett, had sent Bennett pictures of Haywood and Means together, and had

called Bennett’s phone and left “crazy” messages. The evidence also showed that, on the

day of the incident, Bennett had repeatedly called Means’s cell phone and the two

exchanged vulgarities and insults. After the calls, Means drove twenty to thirty minutes

from her house to Bennett’s house. Means then pulled into Bennett’s driveway, started to

get out of the car, announced to Bennett that she was there, got back in the car, backed

out of the driveway, pointed the car at an unusual angle toward Bennett, who was

standing on the sidewalk, accelerated, hit Bennett, and drove away after she ran over

Bennett’s leg. This evidence is sufficient to establish that Means knowingly injured

Bennett.

                                      II. Sentence



                                            4
       Means also argues that her six-year sentence is inappropriate and asks us to allow

her to serve her sentence in a community corrections program. Indiana Appellate Rule

7(B) permits us to revise a sentence authorized by statute if, after due consideration of the

trial court’s decision, we find that the sentence is inappropriate in light of the nature of

the offenses and the character of the offender. Although Rule 7(B) does not require us to

be “extremely” deferential to a trial court’s sentencing decision, we still must give due

consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App.

2007). We also understand and recognize the unique perspective a trial court brings to its

sentencing decisions. Id. “Additionally, a defendant bears the burden of persuading the

appellate court that his or her sentence is inappropriate.” Id.

       The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,

and identify some guiding principles for trial courts and those charged with improvement

of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—

the aggregate sentence—rather than the trees—consecutive or concurrent, number of

counts, or length of the sentence on any individual count.” Id. Whether a sentence is

inappropriate ultimately turns on the culpability of the defendant, the severity of the

crime, the damage done to others, and myriad other factors that come to light in a given

case. Id. at 1224. When reviewing the appropriateness of a sentence under Rule 7(B),

we may consider all aspects of the penal consequences imposed by the trial court in

sentencing the defendant, including whether a portion of the sentence was suspended.

Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).

                                              5
      Means was sentenced to six years, the minimum sentence for a Class B felony,

with four years to be served in the DOC and two years to be served in a community

corrections program.   Means asserts that her character warrants modification of her

sentence. Indeed, Means was close to earning her bachelor’s degree in psychology and

has an eight-year-old daughter. As for her criminal history, however, although she does

not have any adult convictions, she does have a juvenile delinquency adjudication for

battery, which is similar in nature to this offense. Further, Means does not address the

nature of this offense, which involved her driving to Bennett’s house, driving over

Bennett’s leg with a car, and leaving the scene. Based on the nature of the offense and

character of the offender, we cannot conclude that Means’s sentence is inappropriate.

                                       Conclusion

      There is sufficient evidence to support the aggravated battery conviction, and

Means has not established that her sentence is inappropriate. We affirm.

      Affirmed.

VAIDIK, J., and MATHIAS, J., concur.




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