MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                            Oct 04 2017, 9:13 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Leanna Weissmann                                         Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                    Attorney General of Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jason Ell,                                               October 4, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         69A01-1704-CR-822
        v.                                               Appeal from the
                                                         Ripley Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Jeffrey Sharp, Judge
                                                         Trial Court Cause No.
                                                         69D01-1606-F6-137



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 69A01-1704-CR-822 | October 4, 2017        Page 1 of 14
[1]   Jason Ell (“Ell”) appeals his convictions, following a jury trial, for Level 6

      felony domestic battery in the presence of a child 1 and Level 6 felony criminal

      confinement.2 He raises the following two restated issues:


                 I. Whether the State presented sufficient evidence to convict him;
                 and


                 II. Whether his sentence is inappropriate in light of the nature of
                 the offense and the character of the offender.


[2]   We affirm.


                                      Facts and Procedural History
[3]   In June 2016, Ell was living with his then-girlfriend, K.P. and her two young

      children, ages five and one, in a mobile home in Ripley County, Indiana. On

      the evening of June 28, Ell was at work, and at approximately 8:30 p.m., K.P.

      put the children to bed in their bedroom, which was close to the bedroom that

      K.P. and Ell shared. At some point that evening, K.P. learned through her

      cousin’s Facebook post that her grandmother was in the hospital, and, after

      that, K.P. spent time on her phone checking for updates on her grandmother’s

      status. When Ell arrive home from work around 10:30 p.m., K.P. was on the

      bed, still focused on her phone. Ell greeted K.P., showered, made himself some

      food, and made mixed alcoholic drinks for K.P. and himself; thereafter, he sat




      1
          See Ind. Code § 35-42-2-1.3(b)(2).
      2
          See Ind. Code § 35-42-3-3(a).


      Court of Appeals of Indiana | Memorandum Decision 69A01-1704-CR-822 | October 4, 2017   Page 2 of 14
      on his side of the bed and watched one or more movies on his computer, while

      she was on the other side of the bed looking at her phone. There was little

      conversation between them.


[4]   Approximately two and one-half hours passed, and Ell was frustrated that K.P.

      was on her phone so much. He grabbed it out of her hand and threw it across

      the room; it hit a bookshelf and broke. Ell climbed on top of K.P., grabbed her

      arms and held them over her head, pinning her down. He squeezed her arms,

      and she yelled. At some point, K.P. bit Ell so that she could escape from his

      grasp, and he hit her on the right side of her face. 3 K.P.’s five-year-old daughter

      was standing at a baby gate in the bedroom doorway and was yelling.


[5]   When K.P. bit Ell, he released his grasp, and she ran to her uncle’s nearby

      mobile home, banging at his door and windows at approximately 2:00 a.m.

      Her uncle, James Parks (“Parks”), let K.P. inside, and she used his cell phone

      to call 911. Indiana State Trooper Nicholas Albrecht (“Trooper Albrecht”)

      responded to the dispatch call regarding the report of domestic violence and

      arrived within minutes of the 911 call. He knocked on the door of Ell’s

      residence. Ell answered and spoke to Trooper Albrecht, acknowledging that he

      threw K.P.’s phone and pushed her head away when she bit him. Another

      officer stayed with Ell, as Trooper Albrecht spoke to K.P., who told Trooper

      Albrecht that Ell was angry at her for being on her cell phone, and he threw her



      3
       Evidence was presented at trial that Ell was aware that K.P. has a shunt in her head and that contact to her
      head should be avoided. Tr. Vol. II at 33, 178-79.

      Court of Appeals of Indiana | Memorandum Decision 69A01-1704-CR-822 | October 4, 2017            Page 3 of 14
      phone and held her down, so she bit him. She also told Trooper Albrecht that,

      during the altercation, she saw her five-year-old daughter standing in the

      doorway.


[6]   On June 29, 2016, the State charged Ell as follows: Count I, Level 6 felony

      domestic battery in the presence of a child; Count II, Level 6 felony criminal

      confinement; and Count III, Class A misdemeanor domestic battery.

      Appellant’s App. Vol. II at 15-17.4 At the February 2017 jury trial, the State called

      as witnesses Parks, K.P., and Trooper Albrecht; Ell testified in his defense.


[7]   Parks stated that he was sound asleep when K.P.’s loud banging on his

      windows woke him up at around 2:00 a.m. He described that she was “crying

      hysterically” and calling his name, and he let her inside. Tr. Vol. II at 36. His

      kitchen light was turned on, and he saw that K.P. had a red mark on her face

      and swelling around her eye. Id. at 38, 41. K.P. used Parks’s cell phone to call

      911.


[8]   Trooper Albrecht testified that he arrived within minutes of the dispatch call,

      and, upon arriving at the scene, he spoke to Ell, who told him that he was upset

      that K.P. was on her phone and ignoring him, so he took her phone and threw

      it. Ell said that when he threw K.P.’s phone, she bit him, and he pushed her

      head away. Trooper Albrecht observed bite marks on Ell. Trooper Albrecht

      thereafter spoke to K.P. at her uncle’s residence. She was crying and told



      4
          The State also charged, but dismissed, Count IV, Class B misdemeanor battery. Appellant’s App. Vol. 2 at 3.


      Court of Appeals of Indiana | Memorandum Decision 69A01-1704-CR-822 | October 4, 2017              Page 4 of 14
       Trooper Albrecht that Ell had held her down and was yelling at her. She told

       him that she bit Ell in order to get him off of her, and then he hit her in the

       head. K.P. told Trooper Albrecht that she saw her daughter standing in the

       bedroom doorway during the altercation. Trooper Albrecht noticed that K.P.’s

       hair was messed up, she had red marks on both arms, swelling on her right eye,

       and swelling to her forehead. Tr. Vol. II at 121. Trooper Albrecht testified that

       Ell’s story of pushing K.P. “didn’t add up” because it was not consistent with

       her injuries. Id. at 125, 144.


[9]    K.P. testified that she was upset about learning that her grandmother was in the

       hospital, but she did not tell Ell about the situation when he got home because

       “[h]e didn’t ask[,]” and she felt he did not like hearing about her family. Id. at

       60. She could tell that he was becoming frustrated with her being on her phone.

       She testified that he got angry, grabbed her phone, and “flung it” so that it hit

       the bookshelves and broke apart. Id. at 61. She testified that he got on top of

       her and used force to hold her down, which scared her. Id. at 63. They yelled

       at each other, and when he did not let her go as she asked, she bit him on his

       arm, and he “backhanded” her on the side of her face. Id. at 64. She stated that

       no part of the situation felt sexual to her. After Ell hit K.P., he released her,

       and she ran out of the house, saying she was going to call the police. During

       the altercation in the bedroom, K.P. saw her five-year-old daughter in the

       doorway, yelling and looking into the room.


[10]   While being cross-examined, K.P. acknowledged that she had exaggerated the

       situation to the 911 operator when she reported that Ell had thrown her down

       Court of Appeals of Indiana | Memorandum Decision 69A01-1704-CR-822 | October 4, 2017   Page 5 of 14
       on the floor, but testified that “most of” her statements to police were correct.

       Id. at 80. She acknowledged that, at a prior hearing, she had asked that the trial

       court drop the then-existing protective order against Ell because it was her

       desire at that time to have Ell move back into the home. K.P. shared that she

       had been in an abusive relationship for seven years with another man and that

       Ell had never been physically violent with her in the past, but had made

       statements to her that “made [her] stay with him because it scared [her].” Id. at

       90.


[11]   Ell testified to his version of events, which was that he was not angry that K.P.

       was on the phone, did not know about the situation with her grandmother’s

       health, but was aware that her grandfather had recently died, and therefore he

       was “giving her some space[.]” Id. at 151, 152. He testified that he watched a

       movie, and tried every so often to initiate conversation, but she did not respond.

       When K.P. eventually set down her phone, he “tr[ied] to start some kind of

       sexual contact,” and he tossed the phone off the end of the bed so it would not

       get broken during sex. Id. at 154-55. He positioned himself on top of her, and

       when he leaned in to kiss her, she bit him, and, reactively, he pushed her head

       away. Id. at 157. He said he “never saw it coming” and became “livid” that

       she bit him. Id. at 158. Ell said that he began yelling and screaming and does

       not know at what point the children woke up. On rebuttal, Trooper Albrecht

       testified that Ell’s testimony, stating that he was not upset with K.P. at the time

       that he moved her phone, was inconsistent with what Ell had told Trooper




       Court of Appeals of Indiana | Memorandum Decision 69A01-1704-CR-822 | October 4, 2017   Page 6 of 14
       Albrecht on the night in question, which was that he took her phone from her

       because he was upset with her for ignoring him. Id. at 180.


[12]   The jury found Ell guilty as charged, and the trial court merged the Class A

       misdemeanor domestic battery into the Level 6 felony domestic battery in the

       presence of a child less than sixteen years of age. Appellant’s App. Vol. II at 5,

       172; Tr. Vol. III at 21-22. At sentencing, the trial court found as aggravating

       factors: (1) Ell’s criminal history; (2) his violations of conditions of bond,

       including new charged offenses and violation of a no-contact order; and (3) his

       inability to follow rules and regulations. Tr. Vol. III at 23-25. It found as

       mitigating: (1) Ell has been employed much of his adult life; (2) he served in

       the Marine Corps, but was discharged for smoking marijuana; and (3) he has a

       substance abuse history, although he was removed from Indiana Department of

       Correction (“DOC”) treatment due to his failure to follow rules. Id. at 25. The

       court noted “an underlying theme here with Mr. Ell and his inability to follow

       rules and regulations, whether that be the Indiana Criminal Code, the

       conditions of bond, conditions of probation, . . . the United States Marine

       Corp[s]’s regulations, or rules of the [DOC.]” Id. The trial court sentenced Ell

       to two and one-half years with 180 days suspended to probation for the Level 6

       felony domestic battery in the presence of a child conviction, and it imposed the

       same sentence for the Level 6 felony criminal confinement conviction, ordering

       the two sentences to run concurrently. Id. at 26-27; Appellant’s App. Vol. II at

       170, 173. Ell now appeals.




       Court of Appeals of Indiana | Memorandum Decision 69A01-1704-CR-822 | October 4, 2017   Page 7 of 14
                                      Discussion and Decision

                                  I. Sufficiency of the Evidence
[13]   Ell argues that the evidence was insufficient to support his convictions for Level

       6 felony domestic battery in the presence of a child and Level 6 felony criminal

       confinement. When reviewing the sufficiency of evidence to support a

       conviction, we do not reweigh the evidence or assess the credibility of the

       witnesses. Boggs v. State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans.

       denied. We consider only the evidence and reasonable inferences supporting the

       conviction. Williams v. State, 798 N.E.2d 457, 459 (Ind. Ct. App. 2003). We

       will affirm unless no reasonable fact-finder could find the elements of the crime

       proven beyond a reasonable doubt. Boyd v. State, 889 N.E.2d 321, 325 (Ind. Ct.

       App. 2008), trans. denied. It is not necessary that the evidence overcome every

       reasonable hypothesis of innocence. 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).


[14]   To convict Ell of Level 6 domestic battery as charged, the State was required to

       prove beyond a reasonable doubt that Ell knowingly or intentionally touched

       K.P., a family or household member, in a rude, insolent, or angry manner

       resulting in bodily injury to K.P., and he committed the offense in the physical

       presence of a child less than sixteen years of age, knowing that the child was

       present and might be able to see or hear the offense. Ind. Code § 35-42-2-

       1.3(b)(2); Appellant’s App. Vol. II at 15. To convict Ell of Level 6 felony criminal

       confinement as charged, the State was required to prove that Ell confined K.P.
       Court of Appeals of Indiana | Memorandum Decision 69A01-1704-CR-822 | October 4, 2017   Page 8 of 14
       without her consent by holding her to the bed in their bedroom. Ind. Code §

       35-42-3-3(a); Appellant’s App. Vol. II at 16.


[15]   Ell asserts on appeal that his convictions “hinged on [K.P.]’s version of events”

       and that her testimony was incredibly dubious. Appellant’s Br. at 8. In support,

       Ell reminds us that K.P. conceded that she exaggerated some details of the

       situation to the 911 dispatch operator and in her deposition, and, at one stage in

       the proceedings, K.P. asked for the then-existing protective order to be removed

       so that Ell could return home. He also notes that her criminal background

       included convictions for dishonest acts, to which she admitted at trial.


[16]   Under the “incredible dubiosity rule,” this court may impinge upon the jury’s

       responsibility to judge the credibility of witnesses only when confronted with

       inherently improbable testimony or coerced, equivocal, wholly uncorroborated

       testimony. Manuel v. State, 971 N.E.2d 1262, 1271 (Ind. Ct. App. 2012). If a

       sole witness presents inherently improbable testimony, and there is a complete

       lack of circumstantial evidence, a defendant’s conviction may be reversed. Id.

       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. Id. The rule applies only when a witness contradicts

       himself or herself in a single statement or while testifying; it does not apply to

       conflicts between multiple statements. Id. Inconsistencies in the testimonies of

       two or more witnesses go to the weight of the evidence and do not make the

       evidence “incredible” as a matter of law. Id.



       Court of Appeals of Indiana | Memorandum Decision 69A01-1704-CR-822 | October 4, 2017   Page 9 of 14
[17]   We reject Ell’s claim that K.P.’s testimony was incredibly dubious. She told the

       911 operator that Ell held her down, so she bit him, and then he hit her. She

       told Trooper Albrecht that same information when he arrived on the scene, and

       she told the jury that same version of events at trial. She also told her uncle,

       Parks, that Ell had held her down and hit her. There is nothing inherently

       improbable in K.P.’s testimony, and, further, it was corroborated by Trooper

       Albrecht’s observations. That is, K.P. testified that Ell held her down, and

       “backhanded” her face when she bit Ell in an effort to get Ell to release K.P.

       from his grasp. Tr. Vol. II at 64. Trooper Albrecht testified that K.P. told him

       this same information when he arrived at the scene and spoke to her, and he

       testified that Ell’s version of events, that he pushed K.P.’s head away, was not

       consistent with his observations of K.P.’s injuries. Trooper Albrecht also

       testified that Ell’s testimony, stating he was not angry with K.P. until she bit

       him, was inconsistent with what Ell had told him when he arrived on the scene,

       which was that he was mad at K.P. for ignoring him and looking at her phone.

       At best, Ell’s argument is a request for us to reweigh the evidence on appeal,

       which we cannot do. Palacios v. State, 926 N.E.2d 1026, 1034 (Ind. Ct. App.

       2010). The State presented sufficient evidence to convict Ell of Level 6 felony

       domestic battery and Level 6 felony criminal confinement.


                                              II. Sentencing
[18]   The trial court sentenced Ell to two and one-half years with 180 days suspended

       to probation for the domestic battery in the presence of a child conviction and

       to a concurrent sentence of two and one-half years with 180 days suspended to

       Court of Appeals of Indiana | Memorandum Decision 69A01-1704-CR-822 | October 4, 2017   Page 10 of 14
       probation for the criminal confinement conviction. Ell argues that “[t]he trial

       court sentenced [] Ell to the maximum sentence” and that it is inappropriate in

       light of the nature of the offense and the character of the offender. Appellant’s

       Br. at 11.


[19]   Pursuant to Indiana Appellate Rule 7(B), this 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.” Our supreme court has explained that the

       principal role of appellate review should be to attempt to leaven the outliers,

       “not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895

       N.E.2d 1219, 1225 (Ind. 2008). We independently examine the nature of Ell’s

       offenses and his character under Appellate Rule 7(B) with substantial deference

       to the trial court’s sentence. Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015).


[20]   “In conducting our review, we do not look to see whether the defendant’s

       sentence is appropriate or if another sentence might be more appropriate; rather,

       the test is whether the sentence is ‘inappropriate.’” Barker v. State, 994 N.E.2d

       306, 315 (Ind. Ct. App. 2013), trans. denied. “In assessing whether a sentence is

       inappropriate, appellate courts may take into account whether a portion of the

       sentence is ordered suspended or is otherwise crafted using any of the variety of

       sentencing tools available to the trial judge.” McFall v. State, 71 N.E.3d 383,

       390 (Ind. Ct. App. 2017). That is, Indiana courts may consider all aspects of

       the penal consequences found in a trial court’s sentence, including whether it

       consists of executed time, probation, suspension, home detention, or placement

       Court of Appeals of Indiana | Memorandum Decision 69A01-1704-CR-822 | October 4, 2017   Page 11 of 14
       in community corrections, and whether the sentences run concurrently or

       consecutively. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). Ell bears

       the burden of persuading us that his sentence is inappropriate. Barker, 994

       N.E.2d at 315.


[21]   “As to the nature of the offense, the advisory sentence is the starting point the

       legislature has selected as an appropriate sentence for the crime committed.”

       Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015). The advisory

       sentence for a Level 6 felony conviction is one year, with a range of between six

       months and two and one-half years. Ind. Code § 35-50-2-7(b). Although Ell

       claims that his sentence was the maximum, this court has explained, “[A]

       maximum sentence is not just a sentence of maximum length, but a fully

       executed sentence of maximum length” and that “[a]nything less harsh, be it

       placement in community corrections, probation, or any other available

       alternative to prison, is simply not a maximum sentence.” Jenkins v. State, 909

       N.E.2d 1080, 1085-86 (Ind. Ct. App. 2009), trans. denied. Here, Ell’s two

       sentences were ordered to be served concurrent with each other, and a portion

       of his sentence was suspended to probation; thus, he did not receive the

       maximum sentence, as he suggests.


[22]   The nature of the offense is found in the details and circumstances of the

       commission of the offense and the defendant’s participation. Croy v. State, 953

       N.E.2d 660, 664 (Ind. Ct. App. 2011). Ell argues that the “physical impact here

       was minimal” and, therefore, the nature of the offense should “tip[] toward the

       lower end of the sentencing spectrum.” Appellant’s Br. at 12. The circumstances

       Court of Appeals of Indiana | Memorandum Decision 69A01-1704-CR-822 | October 4, 2017   Page 12 of 14
       of the offenses are that Ell was angry with K.P. for ignoring him and focusing

       on her phone, and consequently, he threw the phone, climbed on top of her and

       held her down, despite her protests to be released. K.P. bit Ell, so that he

       would release her, and he hit her in the face causing redness and swelling, and

       later, a black eye. Ell was aware that K.P. had a shunt in her head and should

       not receive contact to her head. Sometime during the altercation, K.P.’s five-

       year-old child was awakened, and stood in the doorway to Ell and K.P.’s

       bedroom. We are not persuaded that anything about the nature of the offense

       warrants a reduction in the imposed sentence.


[23]   “The character of the offender is found in what we learn of the offender’s life

       and conduct.” Croy, 953 N.E.2d at 664. Ell’s criminal history includes six

       misdemeanor convictions and two felony convictions, most of which related to

       substance abuse, such as illegal consumption of alcoholic beverage, possession

       of controlled substance, and operating a vehicle while intoxicated. Tr. Vol. III

       at 23; Appellant’s Confid. App. Vol. II at 146-48. While out on bond in this case,

       Ell was arrested and convicted of another offense and faced other pending

       charges at the time of sentencing in the present action. Tr. Vol. III at 24;

       Appellant’s Confid. App. Vol. II at 151. He has had his probation revoked at least

       once. Ell also violated the conditions of the no-contact order that was put in

       place in the current case. Tr. Vol. III at 24. Based on the record before us, we

       find that Ell’s character does not warrant revision of his sentence. Accordingly,

       Ell has failed to carry his burden of establishing that his sentence is

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


       Court of Appeals of Indiana | Memorandum Decision 69A01-1704-CR-822 | October 4, 2017   Page 13 of 14
[24]   Affirmed.


       Najam, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 69A01-1704-CR-822 | October 4, 2017   Page 14 of 14
