MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                               FILED
regarded as precedent or cited before any                                 Jan 23 2019, 9:52 am

court except for the purpose of establishing                                   CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tosumba D. Welch,                                        January 23, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2039
        v.                                               Appeal from the Greene Superior
                                                         Court
State of Indiana,                                        The Honorable Dena A. Martin,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         28D01-1709-F3-7



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2039 | January 23, 2019                   Page 1 of 8
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Tosumba Welch (Welch), appeals from his sentence for

      two Counts of domestic battery with serious bodily injury to a person less than

      fourteen years old, both as Level 3 felonies, Ind. Code § 35-42-2-1.3(a), (e).


[2]   We affirm.


                                                    ISSUE
[3]   Welch presents one issue on appeal, which we restate as: Whether his eighteen-

      year aggregate executed sentence is inappropriate in light of the nature of his

      offenses and his character.


                      FACTS AND PROCEDURAL HISTORY
[4]   Welch and E.C. are the parents of C.W., who was nine months old in August

      2017. Welch, E.C., and C.W. lived with E.C.’s mother in Linton, Indiana. On

      Saturday, August 26, 2017, Welch cared for C.W. alone at home. On Sunday,

      August 27, 2017, around 10:00 p.m., C.W. became unresponsive and suffered a

      series of seizures. C.W. was rushed to the Greene County Hospital. Welch

      initially reported that C.W. had fallen on Saturday and hit her head against a

      television stand. C.W. was found to have multiple skull fractures and three

      subdural hematomas. In addition, C.W. had four healing rib fractures and

      three fresh rib fractures. C.W. was placed on life support and was transported

      to Riley Hospital in Indianapolis for treatment.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2039 | January 23, 2019   Page 2 of 8
[5]   On August 29, 2017, Welch met with a Department of Child Services case

      manager and reported for the first time that he had punched C.W. in her head

      and had forcefully squeezed C.W. between his arm and chest. Welch

      subsequently admitted that, starting when C.W. was four months old, he had

      punched her in the head on no fewer than ten occasions. Welch also admitted

      that, on five or six occasions, he had forcibly squeezed C.W. Welch punched

      and squeezed C.W. attempting to stop her crying.


[6]   On September 1, 2017, the State filed an Information, charging Welch with

      three Counts of domestic battery with serious bodily injury to a person under

      fourteen, all as Level 3 felonies, and one Count of neglect of a dependent

      resulting in serious bodily injury, a Level 3 felony. On March 22, 2018, Welch

      entered into a plea agreement with the State that provided a cap of twenty years

      on Welch’s sentence, with a cap of eighteen years on the executed portion of

      the sentence.


[7]   The presentence investigation report (PSI) showed that Welch was nineteen

      years old when he committed the offenses. Welch had experienced

      homelessness and physical abuse as a child. Welch was removed from his

      mother’s care when he was fifteen years old after his mother’s boyfriend stabbed

      his mother. Welch was in foster care for two years. Welch had contacts with

      the juvenile justice system for possession of paraphernalia, being a runaway,

      and criminal trespass. Welch was a daily consumer of marijuana and had been

      abusing prescription pain medication since the age of seventeen. In her victim’s

      impact statement appended to Welch’s PSI, C.W.’s grandmother related that

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2039 | January 23, 2019   Page 3 of 8
      after C.W. was rushed to the hospital on August 27, 2017, she was in a coma

      for four days and had “code blue” status on four occasions. (Appellant’s

      Confidential App. Vol. II, p. 93).


[8]   Although she was no longer hospitalized, C.W. was required to take anti-

      seizure medication and continued to experience after-effects of the offenses.

      The probation officer who prepared the PSI recommended that the trial court

      impose consecutive sentences because, “[t]his wasn’t merely a [one-time] lapse

      of judgment caused by the frustration from having a newborn. This was

      consistent and sustained abuse that lasted several months and almost killed a

      [nine-month-old] child.” (Appellant’s Conf. App. Vol. II, pp. 122-23).


[9]   On August 2, 2018, the trial court held a combined guilty plea and sentencing

      hearing. Pursuant to the terms of his plea agreement, Welch pleaded guilty to

      two Counts of domestic battery with serious bodily injury to a person under

      fourteen, one Count for punching C.W. in the head on or about August 26,

      2017, and one Count for squeezing C.W. during August 2017. The trial court

      found Welch’s age, lack of criminal record, guilty plea and cooperation with

      law enforcement, remorse, his difficult childhood, and the fact that he may

      respond affirmatively to incarceration as mitigating circumstances. The trial

      court found Welch’s criminal record to be an aggravating circumstance but did

      not attribute great weight to that factor. The trial court found as additional

      aggravating circumstances that the injury to C.W. was greater than necessary to

      prove the offenses, C.W. was only nine months old, and that Welch was in a

      position of having care, custody, and control over C.W. The trial court

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2039 | January 23, 2019   Page 4 of 8
       sentenced Welch to ten years for each Count, with one year suspended from

       each sentence. The trial court ordered Welch to serve his sentences

       consecutively, for an aggregate executed sentence of eighteen years.


[10]   Welch now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[11]   Welch argues that his sentence is inappropriate given the nature of his offenses

       and his character. The Indiana Constitution and Indiana Appellate Rule 7(B)

       permit an appellate court to revise a sentence if, after due consideration of the

       trial court’s decision, the sentence is found to be inappropriate in light of the

       nature of the offense and the character of the offender. Robinson v. State, 91

       N.E.3d 574, 577 (Ind. 2018). However, sentencing review under Appellate

       Rule 7(b) is deferential to the trial court’s judgment. Stephensen v. State, 29

       N.E.3d 111, 122 (Ind. 2015). That deference will not be overridden unless it is

       “overcome by compelling evidence portraying in a positive light the nature of

       the offense (such as accompanied by restraint, regard, and lack of brutality) and

       the defendant’s character (such as substantial virtuous traits or persistent

       examples of good character).” Id. The defendant bears the burden to persuade

       the reviewing court that the sentence imposed is inappropriate. Robinson, 91

       N.E.3d at 577.


[12]   Welch pleaded guilty to two Counts of Level 3 felony domestic battery with

       serious bodily injury to a person less than fourteen years old. The sentencing

       range for a Level 3 felony is from three to sixteen years, with nine years being

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2039 | January 23, 2019   Page 5 of 8
       the advisory sentence. I.C. § 35-50-2-5(b). Welch’s plea agreement provided a

       cap of twenty years on his sentence, with a cap of eighteen years on the

       executed portion of his sentence, and thus, the trial court’s sentence was the

       maximum allowable pursuant to the terms of the plea agreement.


[13]   The nature of Welch’s offenses was egregious. C.W. did what infants do–she

       cried. Welch responded to C.W. by punching her in the head and squeezing

       her between his arm and chest until her ribs broke. The offenses resulted in

       such grave injury to C.W. that she was placed on life support and had to be

       transported by helicopter to Riley Hospital for care. At the time Welch

       committed the offenses, C.W. was a nine-month-old infant who was utterly

       dependent upon Welch. She was unable to evade Welch or tell others what

       was happening to her.


[14]   As noted in Welch’s PSI, the offenses were not isolated incidents or lapses of

       judgment on Welch’s part. Welch was only charged with one instance of

       punching C.W. and one instance of squeezing C.W., but, beginning when she

       was only four months old, he had punched C.W. in the head no fewer than ten

       times and squeezed her on five or six occasions. Thus, the harm he inflicted on

       C.W. was much greater than that necessary to prove the offenses. Because the

       charged offenses took place at different times between which Welch could have

       sought help, but did not, for his conduct or at least reported it so that C.W.

       could have been seen by medical professionals, we do not find it inappropriate

       that Welch should serve his sentences for the offenses consecutively. See Powell

       v. State, 895 N.E.2d 1259, 1263 (Ind. Ct. App. 2008) (“The basis for the gross

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2039 | January 23, 2019   Page 6 of 8
       impact that consecutive sentences may have is the moral principle that each

       separate and distinct criminal act deserves a separately experienced

       punishment”), trans. denied.


[15]   Welch argues that he was overwhelmed by his parenting responsibilities and

       that the State did not show that he had inflicted long-term injury on C.W.

       However, Welch lived with C.W.’s mother and grandparents. This was not a

       case where Welch had no opportunity for guidance or assistance on parenting.

       In addition, C.W.’s grandmother related to the trial court that C.W. was

       required to take anti-seizure medication after the offenses and that C.W.

       continued to experience after-effects. Welch nearly killed his nine-month-old

       daughter, and that was a severe enough injury to merit the sentence imposed by

       the trial court.


[16]   We acknowledge the several positive aspects of Welch’s character, such as his

       remorse, his cooperation with law enforcement, his guilty plea, and his relative

       lack of criminal record. However, we also note that Welch was not initially

       entirely honest with medical personnel or law enforcement about his conduct

       and he received a substantial benefit as a result of his guilty plea in the form of

       the dismissal of two additional Level 3 felonies and a cap on his individual

       sentences for the offenses that resulted in his potential sentence being reduced

       from thirty-two years to twenty years. We also note that the majority of young

       parents, even those who have experienced a difficult childhood, do not engage

       in the brutality Welch exhibited towards C.W. In short, we simply do not find

       Welch’s character to be so compelling as to override the deference due to the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2039 | January 23, 2019   Page 7 of 8
       trial court’s judgment, particularly in light of the nature of Welch’s offenses.

       See Stephensen, 29 N.E.3d at 122; see also Laux v. State, 821 N.E.2d 816, 823 (Ind.

       2005) (finding the sentence imposed not inappropriate despite Laux’s positive

       character traits, as “we cannot ignore the brutality of the crime he committed”).


                                             CONCLUSION
[17]   Based on the foregoing, we conclude that Welch’s sentence is not inappropriate

       given the nature of his offenses and his character.


[18]   Affirmed.


[19]   Kirsch, J. and Robb, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2039 | January 23, 2019   Page 8 of 8
