MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
                                                                      Nov 14 2019, 6:35 am
regarded as precedent or cited before any
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
Carlos I. Carrillo                                      Curtis T. Hill, Jr.
Greenwood, Indiana                                      Attorney General of Indiana

                                                        Courtney Staton
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Clyde Nelson Magnum Kelley,                             November 14, 2019
III,                                                    Court of Appeals Case No.
Appellant-Defendant,                                    19A-CR-890
                                                        Appeal from the Tippecanoe
        v.                                              Superior Court
                                                        The Honorable Randy J. Williams,
State of Indiana,                                       Judge
Appellee-Plaintiff                                      Trial Court Cause No.
                                                        79D01-1807-F5-130



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019               Page 1 of 21
                                             Case Summary
[1]   Following a bench trial, Clyde Kelley, III, was convicted of Level 6 felony

      battery resulting in moderate bodily injury, Level 6 felony strangulation, Level

      6 felony domestic battery, two counts of Level 6 felony resisting law

      enforcement, and one count of Class A misdemeanor resisting law

      enforcement. The trial court subsequently sentenced Kelley to an aggregate

      term of seven years for his convictions. On appeal, Kelley presents eight issues

      for our review, which we consolidate and restate as:


              1. Are Kelley’s convictions for battery resulting in moderate
                 bodily injury, strangulation, and domestic battery supported
                 by sufficient evidence?


              2. Do Kelley’s multiple convictions for resisting law
                 enforcement violate double jeopardy principles?


              3. Did the trial court abuse its discretion in sentencing Kelley?


              4. Is Kelly’s sentence inappropriate in light of the nature of the
                 offense and his character?


[2]   We affirm in part, reverse in part, and remand with instructions.


                                  Facts & Procedural History
[3]   The facts most favorable to the convictions follow. In 2017, Kelley lived in

      Kentucky and was in a relationship with Star O’Bannon. By July 2018, their

      relationship had turned “very hostile,” so O’Bannon broke up with Kelley and

      went to stay with Vesheena Walton, who lived in an apartment in West
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019   Page 2 of 21
      Lafayette, Indiana. Transcript Vol. II at 19. In an effort to reconcile, O’Bannon

      invited Kelley to visit her in West Lafayette, and Kelley did so on July 12,

      2018. When Kelley arrived, he and O’Bannon went out to dinner and then

      shopping.


[4]   Once back at Walton’s apartment, Kelley and O’Bannon remained outside and

      argued about another woman. Walton came out several times to check on

      O’Bannon. After about an hour, O’Bannon told Kelley that she “want[ed] to

      break up” and asked him to leave. Id. at 21. Kelley said that he was not going

      to leave until he got “his revenge” and then he grabbed a crowbar out of his

      vehicle and hit the passenger window of O’Bannon’s car, shattering it. Id. at

      65. Kelley then got in his car and drove away. Walton called the police.


[5]   Officer Drew Adams of the West Lafayette Police Department was dispatched

      in response to the call and was advised that Kelley was driving a blue Ford

      Mustang. As Officer Adams was driving toward the apartment complex, he

      passed a car matching the description and initiated a traffic stop. After talking

      to Kelley, Officer Adams escorted Kelley back to the apartment complex, where

      Officer Adams presented Kelley with a trespass warning. 1


[6]   About an hour later, Walton drove to a nearby gas station and O’Bannon

      started cleaning the glass out of her car and taking items from her car into




      1
       Officer Adams did not arrest Kelley for criminal mischief after it was determined that Kelley and O’Bannon
      were both on the insurance for O’Bannon’s vehicle and after Kelley stated that he would pay for the damage
      he caused to the car window.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019               Page 3 of 21
      Walton’s apartment. On her second trip, Kelley ran up to O’Bannon in the

      common area outside Walton’s apartment door. Kelley pushed O’Bannon

      against the wall, put his forearm against her and a knife to her throat, and said,

      “bitch if you scream, I will kill you.” Id. at 27. As Kelley walked O’Bannon

      back outside, Walton pulled up in her car. Kelley put his knife back in his

      pocket, but when Walton questioned why Kelley was there, Kelley took the

      knife out and made a stabbing motion toward O’Bannon’s chest. O’Bannon

      took off running. Kelley then approached Walton, who was still sitting in her

      car, and began stabbing her through her open car window. Kelley then took off

      running after O’Bannon.


[7]   Kelley caught up with O’Bannon and after a “little tussle,” they both fell to the

      ground. Id. at 29. Once on the ground, Kelley put both of his hands around

      O’Bannon’s neck and began choking her. O’Bannon could not breathe and felt

      as though Kelley was “crushing” her throat. Id. Kelley had his hands around

      O’Bannon’s neck for only a short time before he again put his knife to her

      throat, poking her with the sharp point of the knife blade. Kelley told

      O’Bannon, “I could have killed you,” and then he got up and ran away. Id. at

      30. After Kelley was gone, O’Bannon went to find Walton and located her at

      another friend’s apartment. Walton was hysterical and was bleeding from cuts

      on her hand, shoulder, chest, and stomach. Walton had already called the

      police to report the attack by Kelley.


[8]   Officer Lutz of the West Lafayette Police Department was on duty at 3:00 a.m.

      on Friday July 13, 2018, when the “all units call” came over the radio reporting

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019   Page 4 of 21
       the stabbing and identifying the stabbing suspect’s vehicle as a blue Mustang.

       Id. at 123. As Officer Lutz drove toward the identified location, he passed the

       suspect vehicle. As soon as Officer Lutz turned his car around, Kelley sped up.

       Officer Lutz activated his emergency lights and continued to follow Kelley,

       who continued to speed up while making several “quick maneuvers”. Id. at

       125. Kelley eventually pulled over and exited the car. Despite Officer Lutz’s

       orders to stop, Kelley ran into a wooded ravine. Not knowing if Kelley was

       armed, Officer Lutz decided not to further pursue Kelley for his own safety and

       requested additional assistance.


[9]    Deputies Kenneth Rooze and Austin Waibel of the Tippecanoe County

       Sheriff’s Department learned of the search for Kelley as they started their

       Friday morning shifts. Deputy Rooze went to assist with the search. He

       eventually saw an individual matching the suspect’s description walk into a

       McDonald’s restaurant and then out another set of doors. When Deputy

       Rooze engaged Kelley in the parking lot, Kelley initially put his hands up. As

       Deputy Rooze reached for Kelley’s arm to detain him, Kelley took off running.

       Deputy Rooze gave chase but could not keep up with Kelley. Deputy Rooze

       requested assistance as he returned to his police vehicle.


[10]   Deputy Waibel also assisted in the search and set up a perimeter around where

       Kelley was believed to be. When Kelley emerged from a wooded area, Deputy

       Waibel ordered Kelley to kneel. Kelley paused, but turned and ran as Deputy

       Waibel started to approach him. Deputy Waibel pursued Kelley on foot

       through a wooded area until Deputy Waibel fell going down a creek

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019   Page 5 of 21
       embankment and sustained an injury to his wrist. Thereafter, Officer Kyle

       Goodman of the West Lafayette Police Department saw Kelley emerge from

       the wooded area. He began chasing Kelley and ordered him to stop. Officer

       Goodman caught up with Kelley and apprehended him.


[11]   On July 18, 2018, the State charged Kelley with Count I, Level 5 felony battery

       by means of a deadly weapon; Count II, Level 6 felony battery resulting in

       moderate bodily injury; Count III, Level 6 felony strangulation; Count IV,

       Class A misdemeanor domestic battery; Count V, Level 6 felony resisting law

       enforcement; Count VI, Level 6 felony resisting law enforcement; and Count

       VII, Class A misdemeanor resisting law enforcement. The State also filed an

       information alleging Kelley was a habitual offender. The State subsequently

       added Count VIII, Class A misdemeanor invasion of privacy, Counts IX and X,

       Class A misdemeanor trespass, and Count XI, Level 5 felony intimidation with

       a deadly weapon. 2 On October 30, 2018, Kelley filed his notice of self-defense.


[12]   A bench trial commenced on March 5, 2019. At the conclusion of the State’s

       evidence, Kelley moved for a directed verdict as to Counts IV, VIII, IX, and X.

       The trial court dismissed Counts VIII, IX, and X, but denied Kelley’s request

       regarding Count IV. The bench trial continued the following day. At the




       2
           Counts I and II identified Walton as the victim. Counts III, IV, and XI identified O’Bannon as the victim.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019                   Page 6 of 21
       conclusion of all the evidence, the trial court found Kelley guilty of Counts II,

       III, IV, V, VI, and VII 3 and entered judgment of conviction thereon.


[13]   The trial court held a sentencing hearing on March 29, 2019. The court

       identified as mitigating factors Kelley’s acknowledgment of responsibility,

       history of employment, education, and support of others. The court identified

       Kelley’s criminal history as an aggravating factor, specifically noting that Kelley

       had accumulated a 2009 rape conviction, a manslaughter conviction in

       Kentucky, prior convictions for resisting law enforcement, theft, and false

       informing, and four petitions to revoke probation. The court also found as

       aggravating that Kelley was on parole at the time of the instant offense and that

       he had a child support arrearage. The trial court sentenced Kelley to two years

       on Counts II and III and one year on Count IV and ordered Counts III and IV

       be served concurrently, but consecutive to Count II. With regard to the

       resisting law enforcement convictions, the trial court sentenced Kelley to one

       and a half years on Counts V and VI and one year on Count VII and ordered

       the sentences on Counts V and VII be served concurrently, but consecutive to

       Count VI. The court ordered the sentences on Counts V, VI, and VII to be

       served consecutive to Counts II and III, for a total aggregate sentence of seven

       years. Kelley now appeals. Additional facts will be provided as necessary.




       3
           The trial court acquitted Kelley of Counts I and XI.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019   Page 7 of 21
                                       Discussion & Decision
                                                  1. Sufficiency

[14]   Kelley argues that the evidence is insufficient to support his convictions under

       Counts II, III, and IV because the State failed to rebut his claim of self-defense

       and because the victims’ testimonies were incredibly dubious. The standard of

       review for a challenge to the sufficiency of evidence to rebut a claim of self-

       defense is the same as the standard for any sufficiency claim. Wilson v. State,

       770 N.E.2d 799, 801 (Ind. 2002). We consider only the probative evidence and

       reasonable inferences supporting the trial court’s decision. Tharpe v. State, 955

       N.E.2d 836, 844 (Ind. Ct. App. 2011), trans. denied. We neither reweigh the

       evidence nor judge the credibility of witnesses. Wilson, 770 N.E.2d at 801. The

       trier of fact is entitled to determine which version of the incident to credit and is

       the sole judge of the effect that any discrepancies or contradictions might have

       on the outcome of the case. Scott v. State, 867 N.E.2d 690, 695 (Ind. Ct. App.

       2007), trans. denied.


[15]   Self-defense is a legal justification for an otherwise criminal act. Bryant v. State,

       984 N.E.2d 240, 250 (Ind. Ct. App. 2013), trans. denied. “A person is justified in

       using reasonable force against any other person to protect the person ... from

       what the person reasonably believes to be the imminent use of unlawful force.”

       Ind. Code § 35-41-3-2(c). The person, however, is not justified in using force if,

       among other things, “the person has entered into combat with another person

       or is the initial aggressor unless the person withdraws from the encounter and

       communicates to the other person the intent to do so and the other person

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019   Page 8 of 21
       nevertheless continues or threatens to continue unlawful action.” I.C. § 35-41-

       3-2(g)(3).


[16]   To prevail on his self-defense claim, Kelley must show that he: “(1) was in a

       place where he had a right to be; (2) acted without fault; and (3) was in

       reasonable fear o[r] apprehension of bodily harm.” Richardson v. State, 79

       N.E.3d 958, 964 (Ind. Ct. App. 2017), trans. denied. When a claim of self-

       defense finds support in the evidence, the State bears the burden of negating at

       least one of the necessary elements. Id. If a defendant is convicted despite his

       claim of self-defense, we will reverse only if no reasonable person could say that

       self-defense was negated beyond a reasonable doubt. Id.


[17]   In support of his claim of self-defense, Kelley directs us to his version of what

       transpired. Kelley claims he was in a place he had a right to be because

       O’Bannon invited him back to Walton’s apartment, that he grabbed O’Bannon

       by the jaw only after O’Bannon “mugged” him, which he described as

       O’Bannon pushing his forehead with the palm of her hand, and that his forearm

       ended up across O’Bannon’s neck as he was fending off what he claims to have

       been a knife attack by Walton. Transcript Vol. II at 217.


[18]   To rebut Kelley’s claim of self-defense, the State relied upon evidence from its

       case-in-chief—that is, the testimony of O’Bannon and Walton, which painted a

       picture in stark contrast to Kelley’s version of events. Indeed, O’Bannon

       testified that as she was walking toward Walton’s apartment, Kelley ran up to

       her, pushed her against the wall, and placed a knife to her throat. After Walton


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019   Page 9 of 21
       returned and confronted Kelley, Kelley stabbed O’Bannon and then attacked

       Walton with the knife through her driver’s side window. Kelley continued the

       violence by running after O’Bannon, eventually catching up with her and

       engaging in a scuffle that resulted in them falling to the ground. Once on the

       ground, Kelley placed his hands around O’Bannon’s neck and choked her.

       Despite his claims to the contrary, the evidence most favorable to the

       convictions reveals that Kelley was not in a place he had a right to be, and he

       was not defending himself, but rather, he instigated and willingly participated in

       the violence against O’Bannon and Walton. The State’s evidence was sufficient

       to rebut Kelley’s claim of self-defense.


[19]   Kelley also challenges the sufficiency of the evidence by arguing that the

       testimonies of the victims were incredibly dubious. Application of the

       incredible dubiosity rule is extremely limited. Under this rule, we will impinge

       on the trier of fact’s responsibility to judge the credibility of the witnesses only

       when confronted by “‘inherently improbable’ testimony or coerced, equivocal,

       wholly uncorroborated testimony of ‘incredible dubiosity.’” Moore v. State, 27

       N.E.3d 749, 755 (Ind. 2015) (quoting Tillman v. State, 642 N.E.2d 221, 223 (Ind.

       1994)). “[W]hile incredible dubiosity provides a standard that is ‘not

       impossible’ to meet, it is a ‘difficult standard to meet, [and] one that requires

       great ambiguity and inconsistency in the evidence.’” Id. at 756 (quoting

       Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001)). “The testimony must be so

       convoluted and/or contrary to human experience that no reasonable person

       could believe it.” Edwards, 753 N.E.2d at 622.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019   Page 10 of 21
[20]   Here, both O’Bannon and Walton provided detailed testimony as to Kelley’s

       attack on them. In claiming their testimonies were incredibly dubious, Kelley

       attempts to show inconsistencies by comparing O’Bannon’s testimony with

       Walton’s testimony and their respective testimonies with their statements to

       police immediately following the incident. Such inconsistencies, however, do

       not implicate the incredible dubiosity rule. Kelley’s arguments in this regard

       are veiled requests to reweigh the evidence and assess the credibility of the

       victims, a task we will not undertake on appeal.


[21]   In sum, the facts as set forth above are sufficient to support the court’s

       determination of guilt as to battery against Walton resulting in moderate bodily

       injury and strangulation and domestic battery against O’Bannon.


                                               2. Double Jeopardy

[22]   Kelley argues that his multiple convictions for resisting law enforcement violate

       double jeopardy principles. Specifically, Kelley argues that his act of resisting

       was one continuous crime. As our Supreme Court has explained:


               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. “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.” The Legislature, not this
               Court, defines when a criminal offense is “continuous,” e.g. not
               terminated by a single act or fact but subsisting for a definite
               period and covering successive, similar occurrences.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019   Page 11 of 21
       Hines v. State, 30 N.E.3d 1216, 1219 (Ind. 2015) (internal citations omitted).

       The continuing crime doctrine essentially provides that actions that are

       sufficient in themselves to constitute separate criminal offenses may be so

       compressed in time, place, singleness of purpose, and continuity of action as to

       constitute a single transaction. Walker v. State, 932 N.E.2d 733, 735 (Ind. Ct.

       App. 2010) (citing Riehle v. State, 823 N.E.2d 287, 296 (Ind. Ct. App. 2005),

       trans. denied).


[23]   Here, Kelley was convicted of Level 6 felony resisting law enforcement based

       on his act of fleeing from Officer Lutz in a vehicle (Count VI), Level 6 felony

       resisting law enforcement for fleeing from Deputy Waibel which resulted in

       injury to Deputy Waibel (Count V), and Class A misdemeanor fleeing on foot

       from Officer Goodman and/or Deputy Rooze (Count VII). Kelley argues that

       there was one, ongoing pursuit from the point at which he initially fled until he

       was apprehended hours later. The State argues that Kelley’s act of resisting was

       not continuous as each encounter with law enforcement was separated by a

       period of time.


[24]   Whether convictions violate double jeopardy is a pure question of law, which

       we review de novo. Rexroat v. State, 966 N.E.2d 165, 168 (Ind. Ct. App. 2012),

       trans. denied. We begin by noting that in the context of multiple resisting law

       enforcement convictions, we have repeatedly held that a defendant’s act of

       fleeing by a vehicle and then immediately on foot constitutes one continuous act

       of resisting law enforcement. See, e.g., Norris v. state, 113 N.E.3d 1245, 1253



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019   Page 12 of 21
       (Ind. Ct. App. 2018); Lewis v. State, 43 N.E.3d 689, 691 (Ind. Ct. App. 2015);

       Nevel v. State, 818 N.E.2d 1, 5 (Ind. Ct. App. 2004).


[25]   Here, Kelley fled from Officer Lutz by vehicle during the early morning hours

       of July 13. This is the first instance of resisting law enforcement (Count VI).

       His convictions for resisting law enforcement on foot (Counts V and VII),

       however, are not based on Kelley’s actions immediately following his fleeing

       from Officer Lutz. Rather, hours passed before Deputies Rooze, Waibel, and

       Goodman encountered Kelley. Under the facts of this case, we conclude that

       the instances of resisting giving rise to Kelley’s convictions under Counts V and

       VII were not a continuation of his resisting by vehicle giving rise to his

       conviction under Count VI. There is thus no double jeopardy violation as to

       these two separate instances of resisting law enforcement.


[26]   However, the instances of resisting giving rise to Counts V and VII were close

       in time, in the same general vicinity, and part of the same act of fleeing. We

       therefore conclude that Kelley’s multiple convictions for resisting law

       enforcement under Counts V and VII violate the continuing crime doctrine.

       We therefore reverse Kelley’s conviction for Class A misdemeanor resisting law

       enforcement (Count VII) and remand to the trial court to vacate such

       conviction and the sentence imposed thereon.


                                    3. Abuse of Discretion in Sentencing

[27]   We first address Kelley’s claim that the trial erred in entering his domestic

       battery conviction as a Level 6 felony. Kelley is correct that he was charged


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019   Page 13 of 21
       with Class A misdemeanor domestic battery and such charge was never

       amended. At the conclusion of the evidence, the trial court simply stated that it

       found Kelley guilty of domestic battery without any further statement as to the

       level of the offense. In the court’s bench trial minutes, the court indicated that

       Kelley was convicted of domestic battery as a Level 6 felony. At the sentencing

       hearing, the State pointed out the error in the bench trial minutes as to the level

       of the domestic battery offense, and the court acknowledged such. In its

       sentencing order, however, the trial court again incorrectly identified Kelley’s

       conviction under count IV as being for domestic battery as a Level 6 felony. 4


[28]   The clerical error aside, the trial court also found that due to double jeopardy

       concerns, the domestic battery conviction “merged” with the strangulation

       conviction. Transcript Vol. III at 63. The State does not dispute that Kelley’s

       convictions for strangulation and domestic battery violate double jeopardy

       principles. Where a double jeopardy violation has occurred and judgments of

       conviction have been entered, a trial court’s act of merging, without vacating

       the conviction, is not sufficient to cure the double jeopardy violation. See

       Morrison v. State, 824 N.E.2d 734, 742 (Ind. Ct. App. 2005) (noting that a

       double jeopardy violation cannot be remedied by the “practical effect” of

       concurrent sentences or by merger after a conviction has been entered), trans.

       denied. We therefore remand to the trial court with instructions to vacate




       4
           The abstract of judgment shows that Kelley was convicted of domestic battery as a Class A misdemeanor.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019               Page 14 of 21
       Kelley’s domestic battery conviction. There is thus no need to order correction

       of the clerical error in the trial court’s sentencing order regarding the level of the

       domestic battery offense.


[29]   We now turn to Kelley’s argument that the trial court abused its discretion in

       sentencing him to an aggregate term of seven years. Sentencing decisions rest

       within the sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d

       482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. “An abuse of discretion

       occurs if the decision is ‘clearly against the logic and effect of the facts and

       circumstances before the court or the reasonable, probable, and actual

       deductions to be drawn therefrom.’” Id. at 490 (quoting K.S. v. State, 849 N.E.2d

       538, 544 (Ind. 2006)). A trial court may abuse its sentencing discretion in a

       number of ways, including: (1) failing to enter a sentencing statement at all; (2)

       entering a sentencing statement that includes aggravating and mitigating factors

       that are unsupported by the record; (3) entering a sentencing statement that

       omits reasons that are clearly supported by the record; or (4) entering a

       sentencing statement that includes reasons that are improper as a matter of law.

       Id. at 490-91.


                                                  a. Balancing

[30]   Kelley argues that the record “does not specifically show that the trial court

       ‘balanced’ the mitigating and aggravating circumstances as required in order to

       impose enhanced sentences.” Appellant’s Brief at 43. Since Anglemyer, however,

       trial courts are no longer obligated to weigh aggravating and mitigating factors

       when imposing a sentence. 868 N.E.2d at 491. Where the sentence imposed
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019   Page 15 of 21
       falls within statutory sentencing parameters, a trial court cannot be said to have

       abused its discretion in failing to properly weigh aggravating and mitigating

       factors. Id.


                                                 b. Mitigators

[31]   Kelley argues that the trial court abused its discretion in failing to consider two

       of his proffered mitigating factors. Specifically, Kelley asked the court to

       consider that he acted under provocation and that he offered to pay restitution

       to his victims. A trial court need not consider proffered mitigating

       circumstances that are highly disputable in nature, weight, or significance.

       Creekmore v. State, 853 N.E.2d 523, 530 (Ind. Ct. App. 2006), clarified on reh’g,

       858 N.E.2d 238. On appeal, the burden rests with the defendant to establish

       that the mitigating evidence is both significant and clearly supported by the

       record. Carter v. State, 711 N.E.2d 835, 838 (Ind. 1999).


[32]   For the trial court to have found that Kelley acted under provocation, the trial

       court would have needed to accept his claim of self-defense that was based on

       his self-serving statements that O’Bannon “mugged” him and Walton attacked

       him with a knife. Transcript Vol. II at 217. The trial court was the finder of fact

       and clearly rejected Kelley’s claim of self-defense. His provocation claim

       likewise fails for sentencing purposes. With regard to his offer to pay

       restitution, Kelley has not established how, given the nature of this case, an

       offer to pay restitution was a significant mitigating factor overlooked by the trial

       court.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019   Page 16 of 21
                                                c. Aggravators

[33]   With regard to aggravating factors, Kelley argues that the court abused its

       discretion in considering his support arrearage to be an aggravating factor. He

       asserts that the court’s finding in this regard “was essentially that there was no

       hardship to Kelley’s autistic minor son by Kelley being incarcerated because he

       was already in arrears.” Appellant’s Brief at 45. Although hard to follow,

       Kelley’s argument seems to conflate an argument that the trial court abused its

       discretion in finding his arrearage to be an aggravating factor with a claim the

       trial court abused its discretion in failing to find that his incarceration would

       impose an undue hardship on his minor, autistic son. Regardless of the

       argument being made, Kelley has failed to establish that the trial court abused

       its discretion.


[34]   Indeed, we note that in identifying aggravating factors, the court relied

       primarily on Kelley’s criminal history, specifically noting his prior convictions

       for rape and manslaughter. Thus, even if we assume that the court abused its

       discretion in considering his support arrearage as an aggravating factor, we are

       convinced the trial court would have imposed the same sentence absent such

       consideration. See Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007)

       (noting that “even if the trial court is found to have abused its discretion in the

       process it used to sentence the defendant, the error is harmless if the sentence

       imposed was not inappropriate”), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019   Page 17 of 21
                                          d. Consecutive Sentences

[35]   Kelley argues that the trial court erred in ordering his sentences under Counts II

       and III to be served consecutively because such offenses arose out of an episode

       of criminal conduct. Ind. Code § 35-50-1-2(c), (d) provides that except for

       crimes of violence, “the total of the consecutive terms of imprisonment . . . to

       which the defendant is sentenced for felony convictions arising out of an

       episode of criminal conduct shall not exceed . . . four (4) years” if, as is the case

       here, the most serious crime for which the defendant is sentenced is a Level 6

       felony.


[36]   Here, the trial court imposed a two-year sentence on both Count II and Count

       III and ordered that they be served consecutively. Even if we assume that the

       convictions arose out of a single episode of criminal conduct, the trial court did

       not sentence Kelley in excess of the statutory limit. Kelley has not established

       that the trial court abused its discretion in ordering the sentences imposed on

       Counts II and III to be served consecutively.


                                           4. Inappropriate Sentence

[37]   Kelley argues that his sentence is inappropriate. This court has the

       constitutional authority to revise a sentence authorized by statute if, “after due

       consideration of the trial court’s decision,” we find that the sentence imposed is

       inappropriate in light of the nature of the offense and the character of the

       offender. See Ind. Appellate Rule 7(B). The question under App. R. 7(B) is

       “not whether another sentence is more appropriate” but rather “whether the


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019   Page 18 of 21
       sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct.

       App. 2008). The burden is on the defendant to persuade the appellate court

       that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080

       (Ind. 2006). “Sentencing review under Appellate Rule 7(B) is very deferential

       to the trial court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012).


[38]   In order to assess the appropriateness of a sentence, we first look to the

       statutory range established for the classification of the relevant offenses. Here,

       Kelley was convicted of Level 6 felony battery resulting in moderate bodily

       injury, Level 6 felony strangulation, and two counts of Level 6 felony resisting

       law enforcement. 5 The sentencing range for the Level 6 felonies is six months

       to two and one-half years, with the advisory sentence being one year. Ind.

       Code § 35-50-2-7(b). Kelley received an aggregate sentence of seven years.


[39]   With regard to the nature of the offense, we note that after Kelley was warned

       by police that he was not permitted to be at the apartment complex, he returned

       and instigated an attack on O’Bannon, pushing her against a wall, holding a

       knife to her neck, and threatening to kill her if she screamed. When Walton

       returned and confronted him, Kelley attacked her with a knife. As a result,

       Walton sustained injuries to her thumb, finger, shoulder, chest, and stomach.

       Kelley then ran after O’Bannon, and after he had her on the ground, he placed




       5
         Because we have directed the trial court to vacate Kelley’s Class A misdemeanor domestic battery
       conviction and Class A misdemeanor resisting law enforcement conviction, we will not consider such in our
       review of the appropriateness of his sentence.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019             Page 19 of 21
       his hands around her neck and choked her. After threatening her one last time,

       Kelley stood up and ran into a nearby wooded area. As a result of Kelley’s

       attack, O’Bannon suffered from scratches and pain. With regard to the resisting

       law enforcement convictions, the record discloses that Kelley fled from

       numerous officers at different points in time. Kelley was on the run for hours

       before he was apprehended. There is nothing about the nature of the offense

       that is deserving of a lesser sentence.


[40]   With regard to the character of the offender, we observe that Kelley was thirty-

       six years old at the time of sentencing. As an adult, Kelley had accumulated

       convictions for two misdemeanor offenses and seven felony offenses. Kelley

       admitted that much of his criminal history stemmed from his involvement in a

       gang. Kelley reported to the probation department that he had been a member

       of the Gangster Disciples from childhood until 2009. In 2009, Kelley was

       convicted of raping a woman as an “initiation” ritual for the Gangster

       Disciples. Transcript Vol. III at 57. In 2017, Kelley was charged with murder in

       Kentucky, although he entered into a plea agreement in which he agreed to

       plead guilty to manslaughter in the first degree. Kelley was on parole at the

       time of the current offense and has violated the terms of probation on at least

       four prior occasions. As the State aptly noted, “[Kelley]’s criminal history is

       violent and senseless. It shows repeated criminal conduct and a propensity of

       violence towards women.” Appellee’s Brief at 39. There is nothing about

       Kelley’s character that warrants a reduction in his sentence. Kelley has not

       demonstrated that his seven-year aggregate sentence is inappropriate.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019   Page 20 of 21
[41]   Judgment affirmed in part, reversed in part, and remanded with instructions to

       vacate Kelley’s convictions for domestic battery and resisting law enforcement

       as a Class A misdemeanor.


       Brown, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019   Page 21 of 21
