MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                              Mar 18 2020, 8:51 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
Nicole A. Zelin                                          Curtis T. Hill, Jr.
Pritzke & Davis, LLP                                     Attorney General of Indiana
Greenfield, Indiana
                                                         Samantha M. Sumcad
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Hayden Nix,                                              March 18, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1542
        v.                                               Appeal from the Hancock Circuit
                                                         Court
State of Indiana,                                        The Honorable R. Scott Sirk,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         30C01-1709-F5-1943



Sharpnack, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1542 | March 18, 2020                 Page 1 of 14
                                            Statement of the Case
[1]   Hayden Nix appeals his conviction of domestic battery, a Class A
                           1
      misdemeanor; and his sentence for domestic battery and battery resulting in
                                                          2
      moderate bodily injury, a Level 6 felony. We affirm.


                                                    Issues
[2]   Nix raises two issues, which we restate as:


                 I.       Whether his sentence is inappropriate in light of the nature
                          of the offenses and his character.


                 II.      Whether his conviction of domestic battery should be
                          vacated pursuant to the continuing crime doctrine.


                                   Facts and Procedural History
[3]   Nix, who was nineteen, had been dating M.W., who was fifteen, for two and a

      half months. On September 17, 2017, Nix picked up M.W. at her mother’s

      house in Henry County, Indiana. They had planned to drive to the

      Indianapolis Zoo, where they would meet M.W.’s sisters. M.W.’s mother,

      Camille Potts, stayed home.




      1
          Ind. Code § 35-42-2-1.3 (2016).
      2
          Ind. Code § 35-42-2-1 (2016).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1542 | March 18, 2020   Page 2 of 14
[4]   Nix and M.W. stopped by his mother’s home in Greenfield, Hancock County,

      Indiana, to get money. After Nix and M.W. left, and as they were driving

      toward Indianapolis, M.W. questioned him about something he had said,

      believing she had “caught him in a lie.” Tr. Vol. II, p. 65. Nix became “very

      angry” and screamed at M.W. He also began hitting the steering wheel and the

      dashboard. The car swerved as he struck the steering wheel. M.W. was scared

      and screamed back at him.


[5]   Nix drove into a parking lot behind a veterinarian’s office and parked the car.

      He turned to M.W. and struck her in the face several times with a closed fist.

      M.W. exited the car. Nix “begged” her to get back in the car, telling her “there

      was [sic] people inside the building and they would come out and be suspicious

      of what was going on.” Id. at 66.


[6]   M.W. reentered the car, but she sat in the back seat. Nix became angry again,

      climbed into the back seat, and struck her in the face repeatedly. M.W. tried to

      get out of the car again, but Nix prevented her. He also yelled at her, calling

      her “[a] whore. A bitch. A slut.” Id. at 67. M.W. told him “he was a horrible

      person.” Id. at 68. Nix became even angrier and put a hand around her neck,

      strangling her. M.W. could not breathe, there was a ringing in her head, and

      her vision was “going black.” Id. Nix accused M.W. of not loving him

      anymore. She responded that she did love him, that she “did still care about

      him and that there was still hope for us.” Id. at 69. M.W. said “whatever [she]

      could say to calm him down.” Id.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1542 | March 18, 2020   Page 3 of 14
[7]    At that point, Nix acted “like he woke up from a bad dream or something.” Id.

       At first, he said he was going to turn himself in to the police, but then he told

       M.W. to get out of the car because “he was going to kill himself.” Id. M.W.

       exited the car and called Nix’s mother. Next, Nix drove though the parking lot,

       crashing the car “into a bush.” Id.


[8]    M.W. ran over to the car and opened the passenger’s side door. Nix appeared

       to be “passed out,” but when he heard M.W. talking to his mother, he “jumped

       out of the car” and ran to where M.W. was standing. Id. He grabbed M.W.’s

       phone, threw it to the ground, and hit her in the face again. This time, M.W.

       lost consciousness.


[9]    When M.W. regained consciousness, she was in the front passenger seat of

       Nix’s car, and he was “cleaning [her] off with ice cubes.” Id. at 70. M.W. saw

       that she was “covered in blood.” Id. She “couldn’t move” or “see very well.”

       Id. at 71. Nix told her to “calm down” as she briefly lost consciousness again.

       Id. Nix also took off her shirt and put a different one on her.


[10]   Nix’s car was still drivable, and they left the parking lot, heading back to Henry

       County. M.W. was nauseous and felt like she might pass out again. They

       stopped at a convenience store, where Nix purchased pain medicine. M.W.

       took several Advil, while Nix took “about fifteen Nyquil.” Id. at 73. M.W. did

       not get out of the car at the convenience store, or when the car was stopped at

       stoplights and stop signs as they went back to Henry County, because she was

       scared of “what he would try to do.” Id. at 159.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1542 | March 18, 2020   Page 4 of 14
[11]   M.W. convinced Nix to take her to her older sister Sadie’s house, telling him

       that Sadie and her family would still be at the zoo and she could clean up there.

       In truth, M.W. thought that her sisters might have returned home, because

       several hours had passed since Nix and M.W. had first stopped in the parking

       lot where Nix attacked her. She was still scared of Nix and promised she would

       lie to her family about what had happened.


[12]   When they arrived at Sadie’s house, Sadie and her family had returned from the

       zoo. M.W. saw her other sister, Hannah, standing outside. M.W. approached

       Hannah, but Nix was right behind her.


[13]   Hannah noticed that M.W. was quiet and was hanging her head, which was

       unusual. When Hannah saw M.W. up close, she realized M.W.’s face was

       swollen, particularly her nose and an eye. It looked like M.W. “got in a fight

       with someone.” Id. at 199. Hannah did not notice any injuries on Nix.


[14]   Hannah asked M.W. what happened, but M.W. stayed quiet while Nix told

       Hannah that M.W. had gotten into a fight with another girl at a gas station.

       M.W. agreed with Nix and then sat on a porch step. Hannah thought it was

       strange, because in her experience M.W. was not the kind of person to provoke

       a fight. Hannah asked what was on M.W.’s neck, and Nix told her it was

       “barbeque sauce.” Id. at 75. Hannah looked inside Nix’s car and saw a bloody

       shirt.


[15]   Hannah went inside to find Sadie. She told Sadie what Nix had said and

       further indicated she did not believe him. Sadie came outside, at which point

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1542 | March 18, 2020   Page 5 of 14
       M.W. began to cry. Sadie noted that M.W. had blood on her shirt and in her

       hair, and marks on her neck. In addition, M.W.’s nose was crooked. Sadie did

       not notice any injuries on Nix. Sadie attempted to find out what happened, but

       every time she asked M.W. a question, “Hayden would answer.” Id. at 185.

       Sadie sent M.W. inside. In passing, Hannah asked M.W., “did he do this to

       you,” Id. at 202, and M.W. nodded her head.


[16]   Next, Sadie asked Nix what had happened to M.W., and he again claimed

       someone had beaten M.W. at a gas station. Sadie “did not believe a word he

       was saying.” Id. at 178. She told Nix he could leave, but M.W. was staying

       with her. Next, Sadie went inside and spoke with M.W. M.W. nodded her

       head when Sadie asked whether Nix had hit her.


[17]   While M.W. spoke with Sadie, Nix returned to his car. He texted M.W.

       pictures of himself throwing up in his car, claiming he was “overdosing.” Id. at

       76. At M.W.’s request, Hannah went to Nix’s car to check on him. Nix was

       talking with his mother on the telephone, and Hannah heard him tell his

       mother that he had “punched [M.W.] in the face.” Id. at 205.


[18]   Nix’s grandparents arrived at Sadie’s house. Nix’s grandfather did not see any

       signs of injury on him. After examining the damage to Nix’s car, he told Nix to

       go home.


[19]   Meanwhile, Sadie had called Potts, who drove to Sadie’s house. When she

       arrived, she saw Nix driving away, while M.W. was standing outside with

       Sadie. Potts approached M.W., who was crying. M.W. had a black eye, a

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1542 | March 18, 2020   Page 6 of 14
       crooked nose, bruises on her neck, a large bruise on her arm, and a swollen lip.

       Potts observed that M.W. was “just kind of foggy, kind of out of it.” Id. at 41.

       M.W. told Potts that “her eye and her head” hurt, id. at 49, and she had a bad

       headache.


[20]   Potts called the police, and Deputy Blake Thrasher of the Henry County

       Sheriff’s Department arrived at Sadie’s house. Deputy Thrasher interviewed

       M.W. and took pictures of a large bruise on her left arm, a bruise on her neck, a

       swollen bruise on the left side of her face just below the eye, and her crooked

       nose. The deputy also took pictures of M.W.’s swollen lip and marks on the

       back of her neck. Next, Deputy Thrasher called Nix’s grandmother. She

       refused to tell him Nix’s location.


[21]   Deputy Thrasher prepared a report. Because the attack occurred in Hancock

       County, he called the Hancock County Sheriff’s Department to ask that agency

       to follow up on the matter.


[22]   Later that day, Potts took M.W. to a hospital. M.W. told emergency room

       personnel that her boyfriend had attacked her while she was sitting in his

       vehicle. She further stated that he had hit her in the head, shoulder, abdomen,

       and chest with his fist, and he had also choked her and hit her left ear. Among

       other symptoms, she reported nausea, dizziness, and a headache. Hospital staff

       performed a CAT scan on her head and abdomen. A doctor diagnosed M.W.

       with a “left maxillary sinus and nasal bone fracture.” Tr. Vol. IV, State’s Ex.

       30, p. 68.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1542 | March 18, 2020   Page 7 of 14
[23]   The next day, Detective Doug Cook of the Hancock County Sheriff’s

       Department contacted Potts. Potts and M.W. went to the sheriff’s office, where

       Detective Cook spoke with M.W. alone for about an hour. He observed that

       she was “very scared” and “very emotional.” Tr. Vol. III, p. 11. In addition,

       Detective Cook took more pictures of M.W. By that time, she had developed a

       large bruise below her left eye and a bruise on the inside right corner of her

       mouth.


[24]   After Potts and M.W. left the sheriff’s department, they drove along the

       highway on which Nix and M.W. had traveled the previous day. M.W.

       recognized the parking lot where Nix had attacked her. Potts and M.W. found

       her sunglasses and part of her phone case on the ground, near the bush that Nix

       had hit with his car. Potts and Nix did not move either item. Potts called the

       police. Officers arrived and collected the phone case and sunglasses.


[25]   M.W. later told a probation officer who was investigating Nix that she felt

       “terrified” during and after Nix’s attack. Appellant’s App. Vol. II, p. 75. She

       further stated she had “struggled emotionally and physically” after the attack

       and felt anxiety to the point that she stopped eating regularly, losing “an

       unhealthy amount of weight.” Id. M.W. reported ongoing nightmares

       resulting from Nix’s acts, and she was considering counseling.


[26]   On September 20, 2017, the State charged Nix with two counts of battery

       resulting in serious bodily injury, both Level 5 felonies; criminal confinement, a




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1542 | March 18, 2020   Page 8 of 14
       Level 5 felony; strangulation, a Level 6 felony; battery resulting in moderate

       bodily injury, a Level 6 felony; and domestic battery, a Class A misdemeanor.


[27]   The trial court presided over a jury trial on May 21-23, 2019. The jury

       determined Nix was guilty of battery resulting in moderate bodily injury and

       domestic battery, and not guilty of the other charges.


[28]   On June 27, 2019, the trial court held a sentencing hearing. For the conviction

       of battery resulting in bodily injury, the court imposed a sentence of 910 days,

       to be served in the county jail. For the conviction of domestic battery, the court

       imposed a sentence of 365 days, also to be served in the county jail. The court

       ordered Nix to serve the sentences consecutively to one another, for a total

       sentence of three and a half years. Finally, the court ordered Nix to serve the

       total sentence in this case consecutively to a sentence in another case. This

       appeal followed.


                                    Discussion and Decision
                                 I. Appropriateness of Sentence
[29]   Nix claims his sentence is too high and asks the court to reduce each sentence

       and order that he serve them concurrently rather than consecutively.


[30]   Indiana Constitution article seven, section six authorizes the Court to review

       and revise sentences “for defendants in all criminal cases.” This authority is

       implemented through Indiana Appellate Rule 7(B), which provides: “[t]he

       Court may revise a sentence authorized by statute if, after due consideration of


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1542 | March 18, 2020   Page 9 of 14
       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.”


[31]   We recognize the special expertise of the trial courts in making sentencing

       decisions; thus, we exercise with great restraint our responsibility to review and

       revise sentences. Scott v. State, 840 N.E.2d 376, 381 (Ind. Ct. App. 2006), trans.

       denied. The principal role of 7(B) review is to leaven the outliers, rather than to

       achieve a perceived “correct” sentence. McCallister v. State, 91 N.E.3d 554, 566

       (Ind. 2018). We impose on the defendant the burden of persuading us that a

       revised sentence is warranted. Id. When conducting this inquiry, we may look

       to any factors appearing in the record. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct.

       App. 2008), trans. denied.


[32]   The advisory sentence is the starting point the legislature has selected as an

       appropriate sentence for the crime committed. Connor v. State, 58 N.E.3d 215,

       220 (Ind. Ct. App. 2016). At the time Nix committed the offenses at issue, the

       maximum sentence for a Level 6 felony was two and one-half years, the

       minimum sentence was six months, and the advisory sentence was one year.

       Ind. Code § 35-50-2-7 (2016). In addition, a person who was found guilty of a

       Class A misdemeanor could be imprisoned for a fixed term “of not more than

       one year.” Ind. Code § 35-50-3-2 (1977). The trial court imposed the

       maximum sentence for each conviction, to be served consecutively for a total

       sentence of three and a half years.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1542 | March 18, 2020   Page 10 of 14
[33]   Turning to the nature of the offenses, Nix argues the circumstances “are not

       ‘egregious’ and certainly do not consist of anything more than the ‘typical’

       offense.” Appellant’s Br. p. 9. We disagree. Nix struck M.W. in three distinct

       phases: (1) as she sat in the front seat of his car; (2) as she sat in the back seat of

       his car; and (3) as she was standing outside the car, talking to his mother on her

       phone. He had ample opportunity to stop his criminal conduct, but he

       continued to strike M.W. until he rendered her unconscious.


[34]   Nix inflicted a variety of injuries on M.W., ranging from fractured facial bones

       to severe bruises and a headache. In addition, he inflicted mental trauma upon

       her. M.W. later reported feeling “terrified” during and after Nix’s attack.

       Appellant’s App. Vol. II, p. 75. She further stated she had “struggled

       emotionally and physically” to the point that she stopped eating regularly,

       losing “an unhealthy amount of weight.” Id.


[35]   Another negative aspect of the circumstances of the offenses is Nix’s failure to

       seek medical help for M.W. after beating her. He instead took her to her sister’s

       house, under the belief that she would clean up and conceal the blood and her

       injuries. In addition, he lied to M.W.’s sisters about what he had done, and

       M.W. felt intimidated into supporting his lies at first. Nothing about the nature

       of the offenses renders his enhanced, consecutive sentences inappropriate.


[36]   We next turn to the character of the offender. Nix, who was twenty years old at

       sentencing, notes that he had no adult criminal convictions when he committed

       the offenses at issue here, but that is not the end of the story.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1542 | March 18, 2020   Page 11 of 14
[37]   As a juvenile, Nix was the subject of numerous delinquency cases. He was

       adjudicated a delinquent for acts that, if committed by an adult, would have

       constituted child molesting, a Level 3 felony; two counts of sexual battery, both

       Class D felonies; two counts of conversion, both Class A misdemeanors; and

       two counts of battery as Class B misdemeanors. It is significant that Nix has

       continued to commit violent crimes despite opportunities to reform. In

       addition, in several of those cases the juvenile courts placed him on probation,

       and he violated the terms of his probation.


[38]   Next, after the current case began, the State filed another criminal case against

       Nix in Hancock County, charging him with several sexual offenses. Prior to

       sentencing in this case, Nix pleaded guilty to three counts of sexual misconduct

       with a minor, all Level 5 felonies.


[39]   In addition to this relatively lengthy history of formally adjudicated, serious

       misconduct, Nix admitted during trial in this case that he had sex with fifteen-

       year-old M.W., which is a Level 5 felony. See Ind. Code § 35-42-4-9 (2014)

       (sexual misconduct with a minor). Further, he has admitted that he drank

       alcohol and smoked marijuana frequently, beginning around age seventeen.


[40]   In summary, Nix has failed to persuade us that his maximum, consecutive

       sentences are inappropriate in light of the nature of the offenses and his

       character. See Grundy v. State, 38 N.E.3d 675, 683-84 (Ind. Ct. App. 2015)

       (sentence for battery not inappropriate; Grundy attacked a “defenseless” victim




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1542 | March 18, 2020   Page 12 of 14
       without provocation and had a lengthy criminal history, including prior

       convictions of battery), trans. denied.


                                 II. Continuing Crime Doctrine
[41]   Nix argues that his offenses of domestic battery and battery with moderate

       bodily injury were essentially “a single transaction,” Appellant’s Br. p. 11, and

       concludes his conviction for domestic battery should be vacated under the

       continuing crime doctrine.


[42]   The continuing crime doctrine, also known as the continuous crime doctrine,

       “is a rule of statutory construction and common law limited to situations where

       a defendant has been charged multiple times with the same offense.” Hines v.

       State, 30 N.E.3d 1216, 1219 (Ind. 2015). “‘The continuous crime doctrine does

       not seek to reconcile the double jeopardy implications of two distinct

       chargeable crimes; rather, it defines those instances where a defendant’s

       conduct amounts only to a single chargeable crime.’” Id. (quoting Boyd v. State,

       766 N.E.2d 396, 400 (Ind. Ct. App. 2002)). “The focus . . . should be on the

       specific actions alleged.” Heckard v. State, 118 N.E.3d 823, 832 (Ind. Ct. App.

       2019), trans. denied. Whether the continuing crime doctrine applies to a case is a

       question of law, which we review de novo. Hines, 30 N.E.3d at 1219.


[43]   The State alleged Nix committed domestic battery by slapping her on the face.

       The State further alleged Nix committed battery resulting in moderate bodily

       injury by bruising her arm. At trial, the State demonstrated that Nix committed

       these distinct offenses against Nix in two separate stages: he first struck her in

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1542 | March 18, 2020   Page 13 of 14
       the face while she sat in the front seat of her car, and then he struck her again,

       and held her down, after she returned to the car but sat in the back seat. Under

       these circumstances, Nix’s conviction for domestic battery did not violate the

       continuing crime doctrine. See Firestone v. State, 838 N.E.2d 468, 472 (Ind. Ct.

       App. 2005) (convictions for rape and criminal deviate conduct did not violate

       continuing crime doctrine; Firestone committed different acts at different

       times); cf. Gomez v. State, 56 N.E.3d 697, 704 (Ind. Ct. App. 2016) (three

       convictions for domestic battery violated continuing crime doctrine; Gomez

       was charged with grabbing victim, pulling her hair, and pushing her against the

       wall, but those acts occurred during one short, uninterrupted attack).


                                                Conclusion
[44]   For the reasons stated above, we affirm the judgment of the trial court.


[45]   Affirmed.


       May, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1542 | March 18, 2020   Page 14 of 14
