      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this
                                                                    Feb 10 2015, 10:39 am
      Memorandum Decision shall not be regarded as
      precedent or cited before 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
      Leanna Weissmann                                          Gregory F. Zoeller
      Lawrenceburg, Indiana                                     Attorney General of Indiana
                                                                Justin F. Roebel
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      James Lee,                                               February 10, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               69A05-1409-CR-439
              v.                                               Appeal from the Ripley Circuit
                                                               Court
                                                               The Honorable James B. Morris,
      State of Indiana,                                        Judge
      Appellee-Plaintiff                                       Case No. 69C01-1304-FD-64




      Crone, Judge.



                                               Case Summary
[1]   James Lee appeals his conviction for class D felony domestic battery and his

      sentence of two and a half years. He contends that his conviction is


      Court of Appeals of Indiana | Memorandum Decision 69A05-1409-CR-439 | February 10, 2015   Page 1 of 8
      unsupported by sufficient evidence and that his sentence is inappropriate based

      on the nature of the offense and his character. We conclude that sufficient

      evidence supports his conviction and that he has failed to carry his burden to

      persuade us that his sentence is inappropriate. Accordingly, we affirm.


                                 Facts and Procedural History
[2]   Lee and S.L. married in January 2008 and lived together in Rexville. One

      evening in February 2013, Lee drove himself home after attending his father’s

      visitation in Vevay. S.L. noticed that Lee was “intoxicated and having trouble

      standing up,” so she “helped him go sit on the couch, so he wouldn’t fall

      down.” Tr. at 214, 248. Lee was “very intoxicated and very upset” about how

      people acted at the visitation. Id. at 214. S.L. told him that she understood

      how he felt because she had lost her father, too. Lee became angry and

      “punched [S.L.] in the stomach three times” and then “double backed his

      elbow” hitting her in the eye. Id. at 214-15. S.L. believed that “it was getting

      out of hand” and went to a different room, where she cried and called a friend.

      Id. at 215. Her friend told her to take a picture of her eye injury. S.L. took a

      photograph of her eye. State’s Ex. 1. S.L.’s friend also advised her to call the

      police, but S.L. did not want to because Lee’s father had just died.


[3]   A day or two later, S.L.’s daughter took another picture of S.L.’s eye. State’s

      Ex. 2. S.L. went to stay with a friend because of what happened, and she was

      afraid. After several more days, S.L. returned home to get clothing. Lee was

      there. S.L. told Lee that she “should press charges on him for what he did to

      [her] eye and he still hadn’t apologized.” Tr. at 224. Lee became angry and
      Court of Appeals of Indiana | Memorandum Decision 69A05-1409-CR-439 | February 10, 2015   Page 2 of 8
      said, “[Y]ou better think before you do this, you don’t want to f**k with

      somebody who has nothing to lose because if they have nothing to lose, they

      have nothing to lose.” Id. S.L. felt that her life had been threatened, and she

      was afraid.


[4]   S.L. went to the Ripley County prosecutor’s office and spoke to investigator

      Kurt Enneking. He observed that S.L. had a black eye visible through her

      makeup. He showed her how to file a complaint and seek a protective order.

      The following day, S.L. sought and obtained a protective order against Lee. As

      part of his investigation of S.L.’s claim, Enneking called Lee and recorded the

      conversation. State’s Ex. 3. Lee told Enneking that he did not know how S.L.

      got the black eye. Lee also stated, “[S.L.] said that we were wrestling around

      one night and, and that I blacked her eye but I never knew I done anything.”

      Tr. at 315.


[5]   The State charged Lee with class A misdemeanor domestic battery and class D

      felony domestic battery with a previous felony conviction. A jury trial was

      held. S.L., her friend, and Enneking testified. The pictures of S.L.’s black eye

      and the recorded phone conversation were submitted. Lee presented no

      evidence. The jury found Lee guilty of class A misdemeanor domestic battery.

      Lee admitted his prior conviction and pled guilty to class D felony domestic

      battery.


[6]   At Lee’s sentencing hearing, the trial court found no mitigating factors. The

      trial court found that Lee’s history of alcohol-related offenses and domestic


      Court of Appeals of Indiana | Memorandum Decision 69A05-1409-CR-439 | February 10, 2015   Page 3 of 8
      battery were aggravating circumstances. The trial court sentenced Lee to two

      and a half years with one year suspended to probation. Lee appeals.


                                     Discussion and Decision

             Section 1 – The evidence is sufficient to support Lee’s
                        conviction for domestic battery.
[7]   Lee challenges the sufficiency of the evidence supporting his conviction. In

      reviewing claims of insufficient evidence, we consider only the evidence and

      reasonable inferences arising therefrom supporting the conviction without

      reweighing the evidence or judging witness credibility. Henley v. State, 881

      N.E.2d 639, 652 (Ind. 2008). “We will affirm a conviction if there is substantial

      evidence of probative value such that a reasonable trier of fact could have

      concluded the defendant was guilty beyond a reasonable doubt.” Id. “A

      conviction can be sustained on only the uncorroborated testimony of a single

      witness, even when that witness is the victim.” Bailey v. State, 979 N.E.2d 133,

      135 (Ind. 2012).


[8]   To convict Lee of class D felony domestic battery, the State was required to

      prove beyond a reasonable doubt that he knowingly or intentionally touched his

      spouse, S.L., in a rude, angry, or insolent manner, which resulted in bodily

      injury to S.L., and that he has a previous felony conviction. Appellant’s App.

      at 18-19; Ind. Code § 35-42-2-1.3. Lee’s sufficiency challenge appears to apply

      to the State’s burden to prove that he knowingly or intentionally touched S.L.

      He argues that the State’s version of the incident was based solely on S.L.’s


      Court of Appeals of Indiana | Memorandum Decision 69A05-1409-CR-439 | February 10, 2015   Page 4 of 8
       testimony that he hit her, whereas his statements on the recorded phone

       conversation indicate that he might have accidentally injured her while

       wrestling. Lee urges us to apply the incredible dubiosity rule to S.L.’s

       testimony.


[9]    Generally, appellate courts do not judge witness credibility, but we may apply

       the “incredible dubiosity” rule to impinge upon the factfinder’s function to

       judge witness credibility. Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007).

       Under the incredible dubiosity rule,

               [i]f 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.

       Love v. State, 761 N.E.2d 806, 810 (Ind. 2002) (citations omitted).


[10]   Lee asserts that S.L.’s testimony that he punched her in the stomach and

       elbowed her eye is inherently improbable in light of her testimony that he was

       so drunk that he was staggering and she had to help him to the couch. We

       disagree. Unfortunately, it is not uncommon for someone who is very

       intoxicated to strike out at someone. The fact that Lee had difficulty keeping

       his balance does not mean that he was incapable of knowingly or intentionally

       hitting S.L. while they were sitting on the couch. We conclude that S.L.’s

       testimony was not incredibly dubious and that her testimony provides sufficient

       Court of Appeals of Indiana | Memorandum Decision 69A05-1409-CR-439 | February 10, 2015   Page 5 of 8
       evidence that Lee knowingly and intentionally touched her in an angry manner.

       Therefore, we affirm his conviction for class D felony battery.


                   Section 2 – Lee’s sentence is not inappropriate.
[11]   Lee contends that his sentence is inappropriate pursuant to Indiana Appellate

       Rule 7(B), which states, “The 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.” When reviewing a sentence, our principal role is to leaven the

       outliers rather than necessarily achieve what is perceived as the correct result.

       Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “We do not look to

       determine if the sentence was appropriate; instead we look to make sure the

       sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind.

       2012). Lee has the burden to show that his sentence is inappropriate.

       Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218.


[12]   Turning first to the nature of the offense, we observe that “the advisory sentence

       is the starting point the Legislature selected as appropriate for the crime

       committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). Lee was

       convicted of a class D felony, which has an advisory sentence of one and a half

       years and a sentencing range of six months to three years. Ind. Code § 35-50-2-

       7. Lee received a sentence of two and a half years. Lee contends that the

       nature of the crime was that “a bereaved, drunken man injured his wife in the


       Court of Appeals of Indiana | Memorandum Decision 69A05-1409-CR-439 | February 10, 2015   Page 6 of 8
       hours after coming home from his father’s visitation.” Appellant’s Br. at 11.

       Lee’s argument ignores that S.L. was trying to console him when he punched

       her in the stomach three times and elbowed her in the eye. He also threatened

       her when she told him that she should report the incident. We are unpersuaded

       that the nature of the crime renders Lee’s sentence inappropriate.


[13]   As for Lee’s character, he argues that he suffers from serious medical

       conditions, completed an alcohol rehabilitation program, and is helping his

       sister care for their brother who has Parkinson’s disease. We fail to discern any

       link between Lee’s medical conditions and his character for purposes of

       reviewing the appropriateness of his sentence. Although Lee successfully

       completed a ten-week treatment program for alcohol addiction, we note that

       after he finished that program he committed the current offense as well as class

       A misdemeanor operating while intoxicated. He has two additional

       convictions for class A misdemeanor operating while intoxicated and a

       conviction for class D felony operating while intoxicated. Of particular concern

       is that he has a 2008 conviction for class A misdemeanor domestic battery.

       Despite numerous past encounters with the justice system, Lee has not

       reformed his behavior, which does not reflect well on his character. Lee points

       to nothing in the record regarding the care of his brother other than his self-

       serving statement that he does so. We conclude that Lee has failed to carry his

       burden to show that his sentence is inappropriate based on the nature of the

       offense and his character.




       Court of Appeals of Indiana | Memorandum Decision 69A05-1409-CR-439 | February 10, 2015   Page 7 of 8
[14]   Based on the foregoing, we affirm Lee’s conviction and sentence for class D

       felony domestic battery.


[15]   Affirmed.


       Friedlander, J., and Kirsch, J., concur.




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