MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                  Aug 12 2020, 9:23 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
Angelus T. Kocoshis                                      Curtis T. Hill, Jr.
Muncie, Indiana                                          Attorney General of Indiana
                                                         Tina L. Mann
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Eddie Vance, III,                                        August 12, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-221
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Kimberly S.
Appellee-Plaintiff.                                      Dowling, Judge
                                                         Trial Court Cause No.
                                                         18C02-1803-F5-35



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-221 | August 12, 2020                      Page 1 of 15
                                                Case Summary
[1]   Eddie Vance III appeals his conviction for Count II, battery resulting in serious

      bodily injury, a Level 5 felony, and his aggregate ten-year sentence for two

      counts of battery resulting in serious bodily injury, Level 5 felonies. We affirm.


                                                        Issues
[2]   Vance presents two issues for our review, which we revise and restate as

      follows:


               I.       Whether the evidence is sufficient to sustain Vance’s
                        conviction.


               II.      Whether the trial court abused its discretion in sentencing
                        Vance.


                                                        Facts
[3]   On February 12, 2018, Jarod Upchurch went to the home of his friend and co-

      worker, Lyndon Rumfelt. While at Rumfelt’s home, the men consumed “a lot”

      of beer and apple pie moonshine. Tr. Vol. II p. 137. Sometime after 1:00 a.m.

      on February 13, 2018, Upchurch left Rumfelt’s home. 1 Upchurch and Rumfelt

      agreed that Upchurch would call Rumfelt and let him know when Upchurch

      made it home.




      1
        At trial, Upchurch conceded that, due to his intoxication level, he “shouldn’t have been driving.” Tr. Vol.
      II p. 149.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-221 | August 12, 2020                    Page 2 of 15
[4]   On the way home, Upchurch decided he wanted to have another drink and

      stopped at Gene’s Bar (“Gene’s”). Upchurch called Rumfelt and advised

      Rumfelt that he decided to stop at Gene’s for a drink. Rumfelt woke his wife,

      Michelle Rumfelt (“Michelle”), and Michelle drove Rumfelt to Gene’s to pick

      up Upchurch because Rumfelt wanted to ensure Upchurch made it home

      safely. Once at Gene’s, Michelle remained inside the vehicle while Rumfelt

      went inside to retrieve Upchurch.


[5]   Rumfelt located Upchurch inside the bar. Vance and others, including Andre

      Anthony, were sitting at the bar inside Gene’s, and some sort of disagreement

      ensued. 2 Security camera footage from inside Gene’s shows that the

      disagreement continued as Rumfelt and Upchurch moved toward the exit with

      Anthony and Vance following behind. Once the men arrived at the exit, 3 a

      physical altercation began. Before Vance moved outside to the parking lot,

      Vance removed his jacket.


[6]   The end of the battery was captured on Gene’s outside security camera. The

      video shows Vance hitting Rumfelt while Rumfelt was on the ground. The

      video also shows Upchurch being pushed out of the door from Gene’s and into




      2
       Several witnesses relayed varying accounts of how the argument ensued and, namely, whether Rumfelt and
      Upchurch or Vance and Anthony were the first aggressors. It is clear from the security camera footage inside
      Gene’s, which does not have audio, that Vance, Rumfelt, and Upchurch were engaged in a conversation
      before the disagreement began. Regardless, because Vance only raises issues as to Upchurch’s injuries, and
      not the battery itself, we will not detail the witnesses’ inconsistencies here.
      3
       There is a short hallway or breezeway separating the entry door to the bar area and the door that exits to the
      parking lot of Gene’s.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-221 | August 12, 2020                    Page 3 of 15
      the parking lot. Vance subsequently kicked Upchurch twice and at least once

      on the head. 4 The video depicts Vance going back inside the bar, retrieving his

      beer mug, exiting Gene’s, and smashing the beer mug over Rumfelt’s head.

      Finally, the video footage reveals Vance pulling out his phone and taking a

      video of Rumfelt and Upchurch. Michelle, who witnessed the battery from her

      vehicle and was without her cell phone, drove to a nearby restaurant and asked

      an unidentified individual to call 911. Michelle then returned immediately to

      Gene’s.


[7]   Officer Jeremy Gibson, with the Muncie Police Department, was dispatched to

      Gene’s at approximately 2:33 a.m. Officer Gibson arrived to find Rumfelt and

      Upchurch lying on the ground outside Gene’s. According to Officer Gibson,

      both men were disoriented and had abrasions and blood on their faces and,

      accordingly, Officer Gibson called for an ambulance. Officer Gibson also took

      photographs of Rumfelt’s and Upchurch’s injuries once they arrived at the

      hospital.


[8]   On August 19, 2019, the State filed an amended charging information, charging

      Vance with two counts of battery causing serious bodily injury, Level 5

      felonies. 5 Count I related to Vance’s battery of Rumfelt, and Count II related to

      Vance’s battery of Upchurch.




      4
          Andre Anthony was also arrested in connection with the events at Gene’s.
      5
       The initial charging information, filed on March 22, 2018, charged Vance with the injuries to both Rumfelt
      and Upchurch under the same charging information. The State amended the charging information on March

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-221 | August 12, 2020                 Page 4 of 15
[9]    At trial, witnesses testified to the foregoing facts. Upchurch testified that he

       recalled ordering a beer at Gene’s and that his next memory was lying on the

       sidewalk in front of Gene’s. When asked whether Upchurch experienced pain

       when he woke up, Upchurch answered affirmatively. When asked whether the

       pain was “[e]xtreme,” Upchurch answered the pain was “[m]oderate.” Id. at

       142. Upchurch testified that he suffered a concussion, had abrasions on his

       skin, and was in pain for approximately one week. Upchurch also testified that

       he continues to experience short term memory loss and a permanent “popping”

       in his jaw while eating. 6 Id. at 143.


[10]   Upchurch’s and Rumfelt’s medical records were admitted into evidence.

       Upchurch’s medical records noted a “laceration and direct blow” on the “scalp,

       face[, and] mouth.” Conf. Ex. Vol. I p. 27. The medical records stated that the

       reported degree of pain was “moderate,” bleeding was “minimal,” and the

       “exacerbating factor is movement.” Id. Upchurch’s medical records also

       indicated that Upchurch sustained a “head injury,” and Upchurch was

       prescribed pain medication. Id. at 32. Officer Gibson’s photographs of Rumfelt

       and Upchurch were admitted as exhibits at trial. Finally, the video taken by

       Vance on his cell phone of Rumfelt and Upchurch after the incident was




       28, 2018, charging Vance with two separate counts for each victim before amending the final charging
       information again in August 2019.
       6
        Although Vance only challenges Upchurch’s injuries in the context of the sufficiency of the evidence,
       Rumfelt also testified regarding his significant and ongoing injuries as a result of Vance’s battery.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-221 | August 12, 2020                  Page 5 of 15
       admitted into evidence; the video refers to Rumfelt and Upchurch as being put

       to “sleep.” State’s Ex. 18.


[11]   After the State concluded its case-in-chief, Vance moved for a directed verdict

       on Count II, which the trial court denied. Vance, who is a black man, testified

       in his defense that the men called Vance a racial slur and that Vance felt as if he

       had to defend himself against Rumfelt and Upchurch during their physical

       altercation. The jury found Vance guilty of both counts.


[12]   On December 30, 2019, the trial court held a sentencing hearing. The trial

       court found as aggravating factors: (1) Vance’s criminal history; 7 (2) prior

       unsuccessful attempts of rehabilitation; (3) the particularly heinous and

       disturbing facts of the case; and (4) the impact the crime had on the victims and

       their families. The trial court found one mitigating factor, namely, that Vance

       has family support which should assist in his rehabilitation. After weighing the

       aggravators and mitigators, the trial court sentenced Vance to six years on

       Count I, the battery to Rumfelt, and four years on Count II, the battery to

       Upchurch, to run consecutively, for an aggregate sentence of ten years at the




       7
         Vance’s pre-sentence investigation report (“PSI”) indicates Vance’s prior convictions for: possession of
       marijuana, a Class A misdemeanor; illegal consumption of an alcoholic beverage, a Class C misdemeanor;
       carrying a handgun without a license, a Class A misdemeanor; possession of marijuana, a Class A
       misdemeanor; driving while suspended, a Class A misdemeanor; resisting law enforcement, a Class D felony;
       battery resulting in bodily injury, a Class A misdemeanor; resisting law enforcement, a Class A
       misdemeanor; operating a vehicle while intoxicated, endangering a person, a Class A misdemeanor; dealing
       in cocaine, a Class B felony; and possession of cocaine, a Class C felony.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-221 | August 12, 2020                Page 6 of 15
       Indiana Department of Correction (“DOC”). Vance now appeals his

       conviction for Count II and his aggregate sentence.


                                                   Analysis
                                        I.       Insufficiency of Evidence

[13]   Vance argues the evidence is insufficient to support his conviction for Count II,

       which pertained to the battery of Upchurch. When a challenge to the

       sufficiency of the evidence is raised, “[w]e neither reweigh evidence nor judge

       witness credibility.” Gibson v. State, 51 N.E.3d 204, 210 (Ind. 2016) (citing

       Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985), cert. denied), cert. denied. Instead,

       “we ‘consider only that evidence most favorable to the judgment together with

       all reasonable inferences drawn therefrom.’” Id. (quoting Bieghler, 481 N.E.2d

       at 84). “We will affirm the judgment if it is supported by ‘substantial evidence

       of probative value even if there is some conflict in that evidence.’” Id.; see also

       McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018) (holding that, even though

       there was conflicting evidence, it was “beside the point” because that argument

       “misapprehend[s] our limited role as a reviewing court”). “We will affirm the

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

       proven beyond a reasonable doubt.” Love v. State, 73 N.E.3d 693, 696 (Ind.

       2017) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)).


[14]   Vance argues that the evidence presented fails to “meet[] the definition of

       serious bodily injury.” Appellant’s Br. p. 12. Pursuant to Indiana Code Section

       35-42-2-1(c)(1), a person who “knowingly or intentionally . . . touches another


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-221 | August 12, 2020   Page 7 of 15
       person in a rude, insolent, or angry manner; . . .” commits battery, a Class B

       misdemeanor. The offense is a Level 5 felony if the offense “results in serious

       bodily injury to another person.” Ind. Code § 35-42-2-1(g)(1). Indiana Code

       Section 35-31.5-2-292 provides:


               “Serious bodily injury” means 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.


[15]   Vance argues that: (1) Upchurch testified he was only in moderate, not extreme,

       pain; (2) Upchurch’s popping in his jaw is not a permanent disfigurement; and

       (3) none of the injuries on Upchurch’s medical record indicate a permanent

       disfigurement. As to Upchurch’s loss of consciousness, Vance argues that, on

       cross-examination, Upchurch was unable to recall whether he lost

       consciousness and that, therefore, it appears Upchurch “black[ed] out” instead.

       Appellant’s Br. p. 11.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-221 | August 12, 2020   Page 8 of 15
[16]   At trial, Upchurch testified that, after ordering a beer, his “next good memory

       would be the police waking [him] up on the sidewalk.” Tr. Vol. II p. 141.

       Upchurch elaborated: “Not really waking me up but I remember the police on

       the sidewalk out in front of Gene’s.” Id. Upchurch testified that he was

       “dazed” and “confused” when he woke up and that he did not recall what

       happened. Id. at 142. On direct examination, Upchurch answered

       affirmatively when asked if he lost consciousness. On cross-examination, when

       asked how Upchurch was certain he lost consciousness if he does not recall

       most of the events of the night, Upchurch responded: “I’m assuming that’s why

       I don’t remember.” Id. at 144.


[17]   The security video demonstrates both Rumfelt and Upchurch lying still on the

       ground for several moments after the battery. Finally, the jury saw the video

       Vance took of Rumfelt and Upchurch immediately after the attack, wherein

       Vance is heard saying he put the men to “sleep.” State’s Ex. 18. From this

       evidence, the jury could have reasonably concluded that Upchurch lost

       consciousness. Upchurch’s loss of consciousness is sufficient to support a

       finding of serious bodily injury.


[18]   Vance’s argument regarding the sufficiency of the evidence is nothing more

       than a request for us to reweigh the evidence, which we cannot do. See Gibson,

       51 N.E.3d at 210. Accordingly, the evidence is sufficient to support Vance’s

       battery conviction as to Upchurch.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-221 | August 12, 2020   Page 9 of 15
                                  II.      Abuse of Discretion in Sentencing

[19]   Vance next argues the trial court abused its discretion in sentencing him by

       failing to consider a number of mitigating factors, including: (1) Vance’s five

       minor children for whom incarceration could create a hardship; (2) Vance was

       found to be in a low category to reoffend according to his PSI; and (3) there was

       evidence that Rumfelt and Upchurch provoked Vance when they used a racial

       slur. 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 (Ind. 2007). So long as the sentence is within the statutory range, the

       sentence is subject to review only for an abuse of discretion. Id. An abuse of

       discretion will be found where 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.


[20]   A trial court may abuse its 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 trial court is not obligated to

       accept a defendant’s claim as to what constitutes a mitigating factor. Rascoe v.

       State, 736 N.E.2d 246, 249 (Ind. 2000). A trial court has discretion to

       determine whether the factors are mitigating and is not required to explain why

       the trial court rejects the defendant’s proffered mitigating factors. Haddock v.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-221 | August 12, 2020   Page 10 of 15
       State, 800 N.E.2d 242, 245 (Ind. Ct. App. 2003). A claim that the trial court

       failed to find a mitigating factor requires the defendant to establish that the

       mitigating evidence is both significant and clearly supported by the record.

       Anglemyer, 868 N.E.2d at 493.


[21]   First, as to Vance’s children, Vance presented no evidence at the sentencing

       hearing that Vance’s incarceration would render a hardship to the children.

       Vance testified that none of his children lived with him and, although Vance

       indicated he was close with his children, Vance presented no evidence

       regarding how Vance’s incarceration might impact his children. See Gray v.

       State, 790 N.E.2d 174, 178 (Ind. Ct. App. 2003) (finding the trial court did not

       abuse its discretion in failing to attach significant weight to the fact that Gray

       had a child because the record revealed the child lived with the child’s mother

       and “Gray spent his money on gambling, not on care for his daughter. . . .”).

       Accordingly, we cannot find the trial court abused its discretion by declining to

       find this factor as a mitigator.


[22]   Second, Vance argues that his low risk to reoffend should have been considered

       as a mitigating factor. As an initial point, as the State points out in its brief, the

       trial court considered information found in the PSI, including Vance’s low risk

       to re-offend. The trial court stated that it “consider[ed] the pre-sentence

       investigation report together with the evidence as presented and final comments

       of counsel” in reaching Vance’s sentence. Tr. Vol. III p. 235. Vance, however,

       fails to advance an argument that this factor is significant and, therefore, that

       the trial court has abused its discretion. See Anglemyer, 868 N.E.2d at 493.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-221 | August 12, 2020   Page 11 of 15
       Accordingly, the trial court did not abuse its discretion in failing to give Vance’s

       low risk to reoffend mitigating weight.


[23]   Finally, we address Vance’s argument that he was “severely provoked.”

       Appellant’s Br. p. 13. First, we note that even if Rumfelt and Upchurch did

       provoke Vance, Vance conceded at sentencing that his reaction “crossed the

       line.” Tr. Vol. III p. 224. The evidence presented, including the security

       camera footage and Vance’s cell phone video, depicted Vance’s protracted

       beating of the two men. The video shows the men having a conversation before

       the physical altercation began; Vance following Rumfelt into the parking lot;

       and then Vance punching and beating Rumfelt. Once Rumfelt was on the

       ground, Vance continued to brutally beat Rumfelt before returning with a mug

       of beer, which Vance smashed on top of Rumfelt’s head. At some point during

       the altercation, Upchurch was pushed out into the parking lot. Vance then

       proceeded to kick Upchurch twice while Upchurch laid on the ground. In light

       of this evidence, we cannot find that even if Vance was provoked, this factor is

       “significant” enough to warrant consideration as a mitigating factor. See

       Anglemyer, 868 N.E.2d at 493. Accordingly, the trial court did not abuse its

       discretion in sentencing Vance.


                                                  Conclusion

[24]   The evidence was sufficient to convict Vance of Count II, and the trial court did

       not abuse its discretion in sentencing Vance on both counts. We affirm.


[25]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-221 | August 12, 2020   Page 12 of 15
Mathias, J., concurs.


Riley, J., concurs in part and dissents in part with opinion.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-221 | August 12, 2020   Page 13 of 15
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Eddie Vance, III,                                        Court of Appeals Case No.
                                                                20A-CR-221
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Riley, Judge concurring in part and dissenting in part


[26]   I concur with the majority’s conclusion that the trial court did not abuse its

       discretion in sentencing Vance for battery resulting in serious bodily injury to

       Rumfelt. However, I respectfully dissent from the majority’s conclusion that

       the State proved beyond a reasonable doubt that Vance inflicted serious bodily

       injury on Upchurch sufficient to sustain his conviction for Count II. ‘Serious

       bodily injury’ is defined in relevant part as bodily injury that causes serious

       permanent disfigurement, unconsciousness, extreme pain, or permanent or

       protracted loss or impairment of the function of a member or organ. See I.C. §

       35-31.5-2-292(1)-(4). In an apparent recognition that the State’s evidence of

       serious disfigurement, extreme pain, or permanent or protracted loss or

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-221 | August 12, 2020       Page 14 of 15
       impairment is lacking, the majority centers its analysis on whether the State

       proved that Vance rendered Upchurch unconscious. To support its conclusion

       that the State made its case, the majority relies on Upchurch’s equivocal

       testimony that the police woke him up but did not really wake him up and his

       affirmative response when asked if he had lost consciousness, which he clarified

       on cross-examination was an assumption on his part.


[27]   We do not reweigh the evidence as part of our review. However, it is not

       reweighing to conclude that evidence to support an element of the offense did

       not exist. Upchurch’s equivocation negated the probative value of his

       testimony, and he admitted that he had no personal knowledge that he had lost

       consciousness. The State did not present any expert medical testimony

       indicating that Upchurch lost consciousness. Therefore, there was no evidence

       in the record which could have supported a reasonable conclusion that Vance

       rendered Upchurch unconscious. For these reasons, I respectfully dissent.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-221 | August 12, 2020   Page 15 of 15
