MEMORANDUM DECISION
                                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                                Apr 08 2019, 10:38 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                            CLERK
                                                                                 Indiana Supreme Court
court except for the purpose of establishing                                        Court of Appeals
                                                                                      and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Michael R. Fisher                                         Curtis T. Hill, Jr.
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana
                                                          Matthew Michaloski
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

David D. Battles,                                         April 8, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2047
        v.                                                Appeal from the Marion County
                                                          Superior Court
State of Indiana,                                         The Honorable Lisa F. Borges,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          49G04-1801-F3-541



Barnes, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2047 | April 8, 2019                        Page 1 of 13
                                      Statement of the Case
[1]   David Battles appeals his conviction of criminal recklessness, a Level 6 felony,

      and his aggregate sentence of eleven years. We affirm.


                                                     Issues
[2]   Battles presents two issues for our review, which we restate as:


              I. Whether there was sufficient evidence to support his
              conviction of criminal recklessness.


              II. Whether his sentence is inappropriate.


                               Facts and Procedural History
[3]   In November 2017, Battles and his two friends, Jason Spears and Robbie

      Lyons, went to the home of Alexandrea Caudill. Alexandrea’s fiancé, Briceson

      Roller, lived with Alexandrea. There was tension among the four men because

      prior to dating and living with Alexandrea, Roller had dated and lived with

      Spears’ sister. When the three men arrived at Alexandrea’s, Lyons remained in

      the truck. Spears and Battles exited the truck, and Spears armed himself with a

      wooden bat. Alexandrea went outside and told the men to leave, but they

      ignored her and advanced into the yard. When Spears appeared as if he was

      going to strike Alexandrea with the bat, Roller emerged from the house and

      stepped in front of her; Spears then hit Roller on the temple with the bat.

      Spears dropped the bat, and the two men engaged in a fistfight. During the

      fight, Spears picked up Roller and slammed him down into a metal fire pit.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2047 | April 8, 2019   Page 2 of 13
[4]   Alexandrea told Battles to get Spears and leave, but Battles was watching the

      progress of the fight. Spears had picked up the bat again and was striking

      Roller in the neck and shoulders. At one point, Battles went to the truck and

      returned with a sledge hammer. While Spears and Roller were fighting, Battles

      stepped in and hit Roller in the back of the head with the sledge hammer.

      Roller fell to the ground. As Battles took another swing, Alexandrea intervened

      to protect Roller and was hit, injuring her wrist. Alexandrea’s mom and

      stepdad came out of the house with guns, and the three men left. Roller, who

      was in and out of consciousness, was taken to the hospital where they closed his

      head laceration with twelve staples. Roller has experienced lasting effects from

      this attack, including memory loss, severe migraines, light sensitivity, and

      difficulty sleeping. Alexandrea suffered pain and bruising from being hit on the

      wrist.


[5]   Based upon this incident, Battles was charged with Count I aggravated battery,
                                1
      a Level 3 felony; Count II battery by means of a deadly weapon, a Level 5
                  2                                                                         3
      felony; Count III battery resulting in serious bodily injury, a Level 5 felony;
                                                                           4
      and Count IV criminal recklessness, a Level 6 felony. Battles was tried in a

      joint trial with Spears, and he was convicted on all counts. The trial court




      1
          Ind. Code § 35-42-2-1.5(2) (2014).
      2
          Ind. Code §§ 35-42-2-1(c)(1), (g)(2) (2016).
      3
          Ind. Code §§ 35-42-2-1(c)(1), (g)(1).
      4
          Ind. Code §§ 35-42-2-2(a), (b)(1)(A) (2014).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2047 | April 8, 2019   Page 3 of 13
      vacated Counts II and III and sentenced Battles to an aggregate sentence of

      eleven years. In this appeal, Battles challenges only his conviction of criminal

      recklessness in Count IV. In addition, he challenges the appropriateness of his

      sentence.


                                   Discussion and Decision
                                 I. Sufficiency of the Evidence
[6]   Battles first contends the State failed to present evidence sufficient to support his

      conviction of criminal recklessness. When an appellant challenges the

      sufficiency of the evidence of his conviction after a jury verdict, “the appellate

      posture is markedly deferential to the outcome below.” Bowman v. State, 51

      N.E.3d 1174, 1181 (Ind. 2016). Upon such a review, we neither reweigh the

      evidence nor judge the credibility of the witnesses. Brasher v. State, 746 N.E.2d

      71, 72 (Ind. 2001). Instead, we consider only the evidence most favorable to the

      verdict and any reasonable inferences drawn therefrom. Id. If there is probative

      evidence from which a reasonable jury could have found the defendant guilty

      beyond a reasonable doubt, we will affirm the conviction. Dillard v. State, 755

      N.E.2d 1085, 1089 (Ind. 2001).


[7]   In order to convict Battles of criminal recklessness in this case, the State was

      required to prove beyond a reasonable doubt that he (1) recklessly (2) while

      armed with a deadly weapon (i.e., sledge hammer) (3) brandished and swung

      the weapon in the presence and/or against the person of Alexandrea Caudill (4)

      thereby creating a substantial risk of bodily injury to her. Appellant’s App. Vol.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2047 | April 8, 2019   Page 4 of 13
      II, pp. 91-92; see also Ind. Code §§ 35-42-2-2(a), (b)(1)(A). Battles challenges the

      State’s evidence as to the element he acted recklessly.


[8]   Indiana Code section 35-41-2-2 (c) (1977) defines the term “recklessly” as

      follows:


               A person engages in conduct “recklessly” if he engages in the
               conduct in plain, conscious, and unjustifiable disregard of harm
               that might result and the disregard involves a substantial
               deviation from acceptable standards of conduct.


      Thus, the State did not have to show that Battles intended the harm that

      resulted from his actions; rather, it only had to prove that he realized or should

      have realized there was a strong probability that bodily injury might occur as a

      result of his actions. Miller v. State, 449 N.E.2d 1119, 1121 (Ind. Ct. App.

      1983).


[9]   The evidence at trial showed that Battles showed up at Alexandrea’s house with

      Spears and Lyons looking for a fight. Alexandrea immediately came out of the

      house and yelled at the men, telling them to leave. Thereafter, she remained

      outside the house and in close proximity to Roller, Battles, and Spears during

      the entire incident. At some point, Battles armed himself with a sledge hammer

      and swung it at the back of Roller’s head, dazing Roller and causing a

      laceration, bleeding, and loss of consciousness. When Battles prepared to land

      another blow of the sledge hammer to Roller, Alexandrea stepped in to protect

      Roller. The area of the sledge hammer where the handle meets the head hit

      Alexandrea’s wrist, causing pain and bruising. When Battles swung the sledge

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2047 | April 8, 2019   Page 5 of 13
       hammer, he knew Alexandrea was present and in the immediate area. A

       reasonable person should realize that such an action is likely to inflict bodily

       injury. Indeed, Battles knew hitting a person with a sledge hammer would

       inflict bodily harm because he had already severely injured Roller by doing just

       that.


[10]   In support of his argument that the State failed to show he realized or should

       have realized there was a strong probability that bodily injury might occur as a

       result of his actions, Battles attempts to analogize his wielding of a sledge

       hammer in this attack to swinging a golf club or a baseball bat. He states that

       “it is sheer speculation to conclude that he was aware of the strong possibility

       that he would injure someone” and that “[if] such a theory of criminal liability

       were to be applied, then anyone swinging a golf club or a baseball bat would be

       subject to a criminal conviction” as well as “[a]nyone hammering a nail.”

       Appellant’s Br. p. 14. However, his analogy is misguided. Swinging a sledge

       hammer in order to strike and injure someone during an attack is clearly a

       substantial deviation from acceptable standards of conduct; conversely,

       swinging a golf club or baseball bat while playing or practicing golf or baseball,

       respectively, or swinging a hammer when hammering a nail are all within the

       bounds of acceptable standards of conduct.


[11]   In addition, Battles seems to somewhat challenge the deadly weapon element of

       his offense. To the extent that this is the case, his claim fails. Indiana Code

       section 35-31.5-2-86(a)(2) (2012), in pertinent part, defines the term deadly

       weapon as a destructive device or equipment that, in the manner it is used or is

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2047 | April 8, 2019   Page 6 of 13
       intended to be used, is readily capable of causing serious bodily injury. Serious

       bodily injury is defined as “bodily injury that creates a substantial risk of death

       or that causes: (1) serious permanent disfigurement; (2) unconsciousness; (3)

       extreme pain; (4) permanent or protracted loss or impairment of the function of

       a bodily member or organ; or (5) loss of a fetus.” Ind. Code § 35-31.5-2-292

       (2012). Further,


               The question of whether a weapon is a deadly weapon is
               determined from a description of the weapon, the manner of its
               use, and the circumstances of the case. The fact finder may look
               to whether the weapon had the actual ability to inflict serious
               injury under the fact situation and whether the defendant had the
               apparent ability to injure the victim seriously through use of the
               object during the crime.


       Merriweather v. State, 778 N.E.2d 449, 457-58 (Ind. Ct. App. 2002).


[12]   Here, Battles used the sledge hammer in such a manner that when he hit Roller

       in the back of the head with it, it inflicted a wound requiring twelve staples to

       close. Fortunately causing only pain and bruising to Alexandrea, the sledge

       hammer Battles wielded certainly had the actual ability to inflict serious injury

       upon Alexandrea, as evidenced by the serious injury it did in fact cause Roller.

       From this evidence, the jury was well within its role as the trier of fact to

       determine that the sledge hammer, used as it was in these circumstances as a

       blunt-force weapon, constituted a deadly weapon, and Battles’ claim, if any, to

       the contrary is completely without merit. See, e.g., Morris v. State, 266 Ind. 473,

       482, 364 N.E.2d 132, 138 (1977) (“While it may be argued that a hammer is not


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2047 | April 8, 2019   Page 7 of 13
       normally a deadly weapon, this court has held that instrumentalities that are

       harmless in their general usage may nevertheless be regarded as lethal when

       utilized in a harmful manner”).


[13]   There was sufficient evidence that Battles acted recklessly when he struck

       Alexandrea with the sledge hammer.


                                     II. Inappropriate Sentence
[14]   Battles also asserts that his sentence is inappropriate in light of the nature of the

       offenses and his character.


[15]   Although a trial court may have acted within its lawful discretion in imposing a

       sentence, article VII, sections 4 and 6 of the Indiana Constitution authorize

       independent appellate review and revision of sentences through Indiana

       Appellate Rule 7(B), which provides that we may revise a sentence authorized

       by statute if, after due consideration of the trial court’s decision, we determine

       that the sentence is inappropriate in light of the nature of the offense and the

       character of the offender. Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App.

       2014). However, “we must and should exercise deference to a trial court’s

       sentencing decision, both because Rule 7(B) requires us to give ‘due

       consideration’ to that decision and because we understand and recognize the

       unique perspective a trial court brings to its sentencing decisions.” Stewart v.

       State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). Such deference to the trial

       court’s judgment should prevail unless overcome by compelling evidence

       portraying in a positive light the nature of the offense (such as accompanied by

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2047 | April 8, 2019   Page 8 of 13
       restraint, regard, and lack of brutality) and the defendant’s character (such as

       substantial virtuous traits or persistent examples of good character). Stephenson

       v. State, 29 N.E.3d 111, 122 (Ind. 2015). Thus, the question under Appellate

       Rule 7(B) is not whether another sentence is more appropriate; rather, the

       question is whether the sentence imposed is inappropriate. King v. State, 894

       N.E.2d 265, 268 (Ind. Ct. App. 2008). The defendant bears the burden of

       persuading the appellate court that his or her sentence is inappropriate.

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


[16]   To assess whether a sentence is inappropriate, we look first to the statutory

       range established for the class of the offenses. Here, Battles was convicted of

       Level 3 felony aggravated battery, for which the advisory sentence is nine years,

       with a minimum sentence of three years and a maximum of sixteen. Ind. Code

       § 35-50-2-5(b) (2014). In addition, Battles was convicted of Level 6 felony

       criminal recklessness, for which the advisory sentence is one year, with a

       minimum of six months and a maximum of two and one-half years. Ind. Code

       § 35-50-2-7(b) (2016). Battles was sentenced to nine years executed followed by

       two years in a community corrections program for the Level 3 offense and one

       year executed followed by one year in a community corrections program on the

       Level 6 offense, to be served concurrently to his sentence for the Level 3. Thus,

       his aggregate sentence of eleven years is slightly above the advisory and well

       below the maximum for both felonies.


[17]   Next, we look to the nature of the offenses and the character of the offender.

       As to the nature of the current offenses, we note that Battles’ attack upon Roller

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2047 | April 8, 2019   Page 9 of 13
       was extremely violent and, as acknowledged by Battles, unjustified. See

       Appellant’s Br. pp. 19, 20. Battles was not involved in the fight but was merely

       an observer until he chose to enter the fray. With his first swing of the sledge

       hammer, Battles caused a laceration to the back of Roller’s head which

       immediately began to bleed. The blow dazed Roller and caused him to collapse

       and intermittently lose consciousness. And yet, Battles then attempted to strike

       Roller again with the sledge hammer, but instead he struck Alexandrea on the

       wrist as she tried to protect Roller. An immediate result of this attack was that

       Roller required twelve staples to close his head wound. In addition, Roller

       suffers the ongoing effects of memory loss, headaches, and sleeplessness.


[18]   With regard to the character of the offender, Battles touts as a positive factor

       that he “had no quarrel with Briceson Roller” and “no issues” with Alexandrea

       but that his actions were just “an effort to assist his friend” Spears and that there

       was nothing “especially malicious” about his conduct. Id. However, we agree

       with the State that Battles’ lack of a personal motive for his brutal attack of

       Roller highlights the nature of his true character but not in a positive manner.


[19]   At sentencing, although acknowledging that much of Battles’ criminal conduct

       is not recent, the trial court determined that his criminal history is an

       aggravating factor. The court specifically noted he has had twenty-seven prison

       conduct incidents and numerous probation revocations and observed, “I note

       his repeated failures on opportunities for probation and suspended sentences

       have resulted in multiple, multiple times being revoked. It’s hard to look at his

       history and find one thing where he managed to get through the sentence

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2047 | April 8, 2019   Page 10 of 13
       successfully. . . . It got revoked almost every time. And almost every time

       revoked for a new offense.” Tr. Vol. 3, p. 39. The court also recognized

       Battles’ troubled childhood and the hardship to his dependents that will result

       from his imprisonment.


[20]   Even a minor criminal history is a poor reflection of a defendant’s character.

       Moss v. State, 13 N.E.3d 440, 448 (Ind. Ct. App. 2014), trans. denied. The

       significance of a criminal history in assessing a defendant’s character and an

       appropriate sentence varies based on the gravity, nature, and proximity of prior

       offenses in relation to the current offense, as well as the number of prior

       offenses. Sandleben v. State, 29 N.E.3d 126, 137 (Ind. Ct. App. 2015), trans.

       denied. Beyond Battles’ plentiful juvenile activity, he has sixteen adult arrests

       and has amassed nine misdemeanor convictions and three felony convictions.

       Especially pertinent to this case, one of Battles’ misdemeanor convictions is a

       domestic violence battery and another is a battery that resulted in bodily injury.

       Moreover, apparently undeterred in his criminal endeavors, Battles had a

       pending felony theft charge at the time of sentencing.


[21]   Further, Indiana Code section 35-38-1-7.1(a)(6) (2015) provides that, in

       determining a defendant’s sentence, the court may consider the fact that the

       defendant recently violated conditions of probation as an aggravating

       circumstance. As the trial court noted here, Battles did not perform well when

       afforded the privilege of probation—six times he was placed on probation and

       six times his probation was revoked.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2047 | April 8, 2019   Page 11 of 13
[22]   Although acknowledging that the trial court took into account his troubled

       childhood, Battles nevertheless outlines certain events of his childhood and

       suggests that his sentence is inappropriate in light of such circumstances.

       Evidence of a difficult childhood warrants little, if any, mitigating weight.

       Bethea v. State, 983 N.E.2d 1134, 1141 (Ind. 2013). Yet, the trial court took this

       factor into consideration and noted that, in spite of such circumstances, Battles

       emerged “as a person who found a way to make a living” and had “attended

       Ivy Tech and Harrison College.” Tr. Vol. 3, p. 38.


[23]   Finally, Battles mentions his caretaking of members of his family. A trial court

       is not required to find that a defendant’s incarceration would result in undue

       hardship to his dependents. Benefield v. State, 904 N.E.2d 239, 247 (Ind. Ct.

       App. 2009), trans. denied. “Many persons convicted of crimes have dependents

       and, absent special circumstances showing that the hardship to them is ‘undue,’

       a trial court does not abuse its discretion by not finding this to be a mitigating

       factor.” Id. Nevertheless, the trial court took this factor into consideration as

       well.


[24]   Battles has not met his burden of presenting compelling evidence portraying in

       a positive light the nature of the offenses and his character in order to overcome

       the trial court’s sentencing decision.


                                                 Conclusion
[25]   For the reasons stated, we conclude there was sufficient evidence to support

       Battles’ conviction of criminal recklessness. In addition, considering both the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2047 | April 8, 2019   Page 12 of 13
nature of the offenses and the character of the offender and giving due

consideration to the trial court’s sentencing decision, we are unable to conclude

that Battles’ eleven-year sentence is inappropriate.


Bradford, J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2047 | April 8, 2019   Page 13 of 13
