MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),                                   May 03 2017, 9:19 am

this Memorandum Decision shall not be                                         CLERK
                                                                          Indiana Supreme Court
regarded as precedent or cited before any                                    Court of Appeals
                                                                               and Tax Court
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
Megan Shipley                                           Curtis T. Hill, Jr.
Marion County Public Defender Agency                    Attorney General of Indiana
Indianapolis, Indiana
                                                        Angela N. Sanchez
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Elgin Fidell,                                           May 3, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1606-CR-1389
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Stanley Kroh,
Appellee-Plaintiff                                      Magistrate
                                                        Trial Court Cause No.
                                                        49G03-1602-CM-6494



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CR-1389 | May 3, 2017                Page 1 of 10
[1]   A jury found Elgin Fidell guilty of Level 5 felony battery 1 and Level 6 felony

      invasion of privacy. 2 Fidell appeals, arguing there was insufficient evidence to

      sustain his conviction of Level 5 felony battery and his sentence is

      inappropriate. We affirm.



                                Facts and Procedural History
[2]   Fidell and S.T. began dating in February 2015 and continued to date “on and

      off for about a year.” (Tr. at 5.) Their relationship was tumultuous and Fidell

      was physically violent toward S.T. On April 21, 2015, S.T. obtained a

      protective order from the court under Cause Number 32D01-1504-CM-509

      (“Cause 509”) that required Fidell have no contact with S.T.


[3]   On August 11, 2015, under Cause Number 49G16-1508-CM-028361 (“Cause

      28361”), for acts committed against S.T., the State charged Fidell with Class A

      misdemeanor battery resulting in bodily injury 3 and Class A misdemeanor

      invasion of privacy. 4 On October 27, 2015, the trial court convicted Fidell of

      both crimes in Cause 28361.




      1
          Ind. Code § 35-42-2-1(f)(4) (2014).
      2
          Ind. Code § 35-46-1-15.1 (2014).
      3
          Ind. Code § 35-42-2-1(c) (2014).
      4
          Ind. Code § 35-46-1-15.1 (2014).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CR-1389 | May 3, 2017   Page 2 of 10
[4]   Fidell and S.T. broke up in February 2016. On February 15, 2016, S.T. was at

      Circle Center Mall in Indianapolis with her friend Nick. While S.T. and Nick

      were walking around the mall, S.T. saw Fidell. Fidell called S.T. profane

      names, but S.T. ignored Fidell and walked away with Nick. S.T. and Nick then

      split up and agreed to meet later at the food court. When S.T. returned to the

      food court to meet Nick, she saw Fidell sitting with Nick. S.T. was “frustrated”

      and began yelling at Fidell because she knew Fidell and Nick were not friends.

      (Id. at 12.) Nick got up, and he and S.T. began to walk away. Fidell then

      “rushed” toward S.T. (Id.) S.T. pushed Fidell away and ran away from Fidell

      toward the escalators. Fidell chased after her. S.T. made it down the escalator

      from the third floor to the second floor before Fidell caught up with her. Fidell

      then threw S.T. onto the floor and began hitting and kicking her. Nick pulled

      Fidell off S.T., and a mall security guard, Ashley Patton, who had seen these

      events, approached. By the time Patton arrived, Fidell and S.T. were separated.

      Patton notified the mall security office of the situation, and the security office

      called the Indianapolis Metropolitan Police Department (“IMPD”).


[5]   Two other security officers arrived to assist Patton in escorting Fidell and S.T.

      to the security office. As the group was walking to the security office, Fidell

      began yelling and tried to hit S.T. in the head. The security officers and

      bystanders took Fidell to the ground. This second attack occurred outside of

      Victoria’s Secret, near the mall’s security office. Around this same time, IMPD

      Officer Gregory Weber arrived and observed Fidell yelling as he was being




      Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CR-1389 | May 3, 2017   Page 3 of 10
      restrained on the floor. As a result of Fidell’s attacks, S.T. sustained contusions

      on her chest and forehead.


[6]   On March 1, 2016, the State charged Fidell with Class B misdemeanor battery 5

      and Class A misdemeanor invasion of privacy for Fidell’s violation of the no

      contact order in Cause 509. In its charging information, the State alleged

      Fidell’s prior convictions of battery and invasion of privacy in Cause 28361

      could be used to elevate Fidell’s present crimes. Thus, the State also charged

      Fidell with battery as a Level 5 felony and Level 6 felony invasion of privacy.


[7]   The court held a bifurcated jury trial 6 on April 21, 2016. During the first part of

      the trial, the jury heard testimony from S.T., Patton, and Officer Weber

      regarding the incidents on February 15, 2016, at Circle Center Mall. The jury

      found Fidell guilty of battery as a Class B misdemeanor and invasion of privacy

      as a Class A misdemeanor. During the second part of the trial, the judge

      instructed the jury on the elevated counts of Level 5 felony battery and Level 6

      felony invasion of privacy. The jury heard expert testimony from Jason

      Sumner, a fingerprint analysist for the IMPD. Sumner testified he administered

      a fingerprint test on Fidell earlier that afternoon (“trial fingerprint”) and Fidell’s

      trial fingerprint print matched Fidell’s fingerprint from the day he was arrested




      5
          Ind. Code § 35-42-2-1(b)(1) (2014).
      6
       The court held a bifurcated trial so that the jury would not be told of Fidell’s prior convictions of battery and
      invasion of privacy in Cause 28361 before it determined whether he committed battery and invasion of
      privacy at Circle Center Mall on February 15, 2016.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CR-1389 | May 3, 2017                   Page 4 of 10
      on August 11, 2015 in Cause 28361 (“Cause 28361 fingerprint”). Fidell’s Cause

      28361 fingerprint and trial fingerprint were submitted into evidence as Exhibits

      7 and 8, respectively. After hearing this evidence, the jury further found Fidell

      guilty of Level 5 felony battery and Level 6 felony invasion of privacy. The

      court accepted the jury’s verdicts and convicted Fidell of Level 5 felony battery

      and Level 6 felony invasion of privacy.


[8]   The court held a sentencing hearing on May 31, 2016. The court found Fidell’s

      “young” age of twenty-seven years to be a mitigating factor. (Id. at 120.) The

      court also found as a mitigating factor Fidell’s “early childhood and

      upbringing” involving foster care, frequent moves and a father who was in

      prison since Fidell was very young. (Id.) The court found as an aggravating

      circumstance Fidell’s lengthy criminal history including seventeen arrests, ten

      misdemeanor convictions, and two felony convictions. Additionally, the court

      noted the “violent” nature of the battery as an aggravator. (Id.) For the Level 5

      felony battery conviction, the court sentenced Fidell to six years, with one year

      suspended to probation. The court also ordered Fidell, during probation, to

      complete a mental health evaluation and domestic violence counseling. For the

      Level 6 felony invasion of privacy conviction, the court sentenced Fidell to two

      years and ordered the sentence be served concurrent with the six-year sentence

      for battery. The court granted Fidell credit for 141 days served.



                                Discussion and Decision
                                        I. Sufficiency of Evidence

      Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CR-1389 | May 3, 2017   Page 5 of 10
[9]    When reviewing sufficiency of the evidence in support of a conviction, we will

       consider only probative evidence in the light most favorable to the trial court’s

       judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 1995), reh’g denied. The

       decision comes before us with a presumption of legitimacy, and we will not

       substitute our judgment for that of the fact-finder. Id. We do not assess the

       credibility of the witnesses or reweigh the evidence in determining whether the

       evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal

       is appropriate only when no reasonable fact-finder could find the elements of

       the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not

       required to overcome every reasonable hypothesis of innocence and is sufficient

       if an inference reasonably may be drawn from it to support the verdict. Id. at

       147.


[10]   To prove Fidell committed Level 5 felony battery, the State had to show: (1)

       Fidell knowingly or intentionally touched S.T. in a rude, insolent, or angry

       manner, and (2) Fidell was previously convicted of battery against S.T. See Ind.

       Code § 35-42-2-1(f)(4) (2014). Fidell argues the State failed to present sufficient

       evidence beyond a reasonable doubt that S.T. was the victim in Fidell’s battery

       conviction 7 in Case 28361. We disagree.




       7
        Fidell challenges only the “same victim” element required to be convicted of Level 5 felony battery under
       Ind. Code § 35-42-2-1(f)(4) (2014). Because the “same victim” element is not present in Ind. Code § 35-46-1-
       15.1 (2014), Fidell does not challenge the sufficiency of evidence pertaining to his conviction of Level 6
       invasion of privacy.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CR-1389 | May 3, 2017              Page 6 of 10
[11]   The jury heard testimony from Sumner, who testified the fingerprint of the

       person convicted in Cause 28361 was the same as Fidell’s trial fingerprint. The

       jury also heard S.T.’s testimony that she and Fidell had been dating since

       February 2015 and that she had obtained a protective order from the court

       against Fidell in April 2015. The State presented the jury with the charging

       information, judgment of conviction, and sentencing order in Cause 28361.

       The charging information in Cause 28361 alleged Fidell “knowingly touch[ed]

       [S.T.]” in a rude, insolent, or angry manner and knowingly violated the

       protective order issued in Cause 509. (Ex. 6.) The jury had the opportunity to

       assess the testimony and evidence before it, and the jury found the State proved

       beyond a reasonable doubt that Fidell committed the battery against S.T. in

       Cause 28361. Fidell’s argument is an invitation for us to reweigh the evidence

       and judge the credibility of witnesses, which we cannot do. See Drane, 867

       N.E.2d at 146 (appellate court will not reweigh evidence or judge the credibility

       of witnesses). Based on the record before us, we cannot say the evidence was

       insufficient for the jury to find Fidell had been convicted of battery against S.T.

       in Cause 28361, which supports the enhancement of his crime herein.


                                           Inappropriate Sentence

[12]   Fidell also argues his aggregate six-year sentence is inappropriate. Under

       Indiana Appellate Rule 7(B), we may revise a sentence if, after due

       consideration of the trial court’s decision, we find the sentence is inappropriate

       in light of the nature of the offense and the character of the offender. Williams v.

       State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008). Our review is deferential to
       Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CR-1389 | May 3, 2017   Page 7 of 10
       the trial court’s decision, and our goal is to determine whether the defendant’s

       sentence is inappropriate, not whether some other sentence would be more

       appropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012), reh’g denied. The

       appellant bears the burden of demonstrating his sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[13]   When considering the nature of the offense, the advisory sentence is the starting

       point for determining the appropriateness of a sentence. Anglemyer v. State, 868

       N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (2007). The

       statutory range for a Level 5 felony sentence is one to six years, with the

       advisory sentence being three years. Ind. Code § 35-50-2-6 (2014). The

       statutory range for a Level 6 felony sentence is six months to two-and-a-half

       years, with the advisory sentence being one year. Ind. Code § 35-50-2-7 (2014).

       One factor we consider when determining the appropriateness of a deviation

       from the advisory sentence is whether there is anything more or less egregious

       about the offense committed by the defendant that makes it different from the

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

       sentence. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App. 2008), trans. denied.


[14]   We agree with the State that the nature of the offense here was more egregious

       than a typical battery. Fidell violated the protective order more than once and

       physically assaulted S.T. more than once at Circle Center Mall on February 15,

       2016. When Fidell saw S.T. at the mall and called her names, he did not stay

       away from her as required by the no contact order. Instead, Fidell waited for

       S.T. in the food court. The confrontation in the food court led to Fidell chasing

       Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CR-1389 | May 3, 2017   Page 8 of 10
       S.T. through the mall and physically attacking her not once, but twice: first by

       the escalators, and then near Victoria’s Secret. Fidell’s acts were not the

       product of a momentary lapse of judgment. Rather, his acts were persistent,

       cruel, and violent. Based on the violent and relentless nature of Fidell’s actions,

       the trial court was warranted in sentencing Fidell to more than the advisory

       three years.


[15]   Regarding Fidell’s character, the trial court acknowledged Fidell’s young age

       and troubled childhood as mitigating circumstances. However, the trial court

       also noted Fidell’s lengthy juvenile and adult criminal history, and Fidell’s

       crimes against S.T. at the mall following a long series of other violent crimes

       Fidell committed against S.T. Indeed, Fidell’s inability to leave S.T. alone,

       even in the presence of protective orders, reflects poorly on his character. Fidell

       has failed to show that the nature of the offense and his character render his six-

       year aggregate sentence inappropriate. See Stephenson v. State, 53 N.E.3d 557,

       562 (Ind. Ct. App. 2016) (holding enhanced sentence not inappropriate where

       appellant had criminal history reflecting poorly on his character).



                                               Conclusion
[16]   The State presented sufficient evidence Fidell committed Level 5 felony battery,

       and his sentence is not inappropriate based on his character or the nature of the

       crime. Accordingly, we affirm.


[17]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CR-1389 | May 3, 2017   Page 9 of 10
Najam, J., and Bailey, J., concur.




Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CR-1389 | May 3, 2017   Page 10 of 10
