Pursuant to Ind.Appellate Rule 65(D),

                                                               FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                         Jul 12 2012, 9:18 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
                                                                    CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

MARCE GONZALEZ, JR.                               GREGORY F. ZOELLER
Dyer, Indiana                                     Attorney General of Indiana

                                                  MICHAEL GENE WORDEN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

ANTHONY RAY EWING,                                )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )      No. 45A03-1109-CR-447
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                      APPEAL FROM THE LAKE SUPERIOR COURT
                         The Honorable Diane Ross Boswell, Judge
                              Cause No. 45G03-1007-FA-23



                                         July 12, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

       Anthony Ewing appeals his conviction for battery, as a Class C felony, following a

jury trial. Ewing raises two issues on appeal:

       1.     Whether the trial court abused its discretion when it sentenced him.

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

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On the evening of July 11, 2010, Keith Daniels and Rosemary Moreno were at

Daniels’ residence in Hammond. Anthony Ewing, who had met Daniels one month prior

at a soup kitchen, arrived unexpectedly at Daniels’ residence later that night and brought

beer and whiskey with him. Daniels let Ewing inside and Daniels, Ewing, and Moreno

drank alcohol and listened to music.

       Later, Daniels asked Ewing and Moreno to leave because he was tired and wanted

to go to bed. When Daniels moved towards the front door, Ewing struck him on the head

from behind, causing him to fall to the floor. Ewing continued to hit Daniels and said

that Daniels had disrespected him. Daniels told Moreno to call the police, and Ewing

walked over to Moreno and struck her, knocking her unconscious. Daniels got up from

the floor, and he and Ewing began to fight. When Ewing demanded money from Daniels,

Daniels told him that there was money located in his bedroom.

       In the bedroom, Daniels told Ewing that he did not have any money. Ewing again

struck Daniels, breaking his nose, and then began to choke Daniels. When Daniels said

he would give Ewing the money, Ewing eased off of him. Daniels then grabbed a box
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cutter from his dresser drawer and attempted to use it on Ewing, but Ewing disarmed

him, and the box cutter fell to the floor. Daniels then said that he had money in the

bathroom and went into the bathroom to stall for about one minute. When Daniels left

the bathroom, he told Ewing that the money was in the dining room. Daniels then

retrieved a knife and used it to threaten Ewing. Around the same time, Moreno ran out

the back door. When Ewing heard the door shut, he lunged at Daniels. Daniels stabbed

Ewing three times with the knife and also cut himself on his leg. As the two were

scuffling, the knife broke. Ewing got up and ran out the back door. The police arrived

shortly thereafter.

       Daniels and Moreno were transported to the hospital in an ambulance. Daniels’

injuries included a cut under his eye, a broken nose, a broken thumb, contusions on his

face and shoulder, and a laceration on his leg. Both the cut under Daniels’ eye and the

cut on his lip required stitches. The laceration on Daniels’ leg required staples.

       On July 22, 2010, the State charged Ewing with two counts of attempted robbery,

as Class A felonies; two counts of robbery, as Class B felonies; two counts of criminal

confinement, as Class B felonies; and two counts of battery, as Class C felonies. On July

7, 2011, the jury found Ewing guilty of one count of battery, as a Class C felony, and

acquitted him on the remaining counts.

       At the sentencing hearing, Daniels told the trial court that he suffers from sinus

problems as a result of his broken nose and that he has a scar under his left eye from the

cut he sustained during the incident. The trial court sentenced Ewing to the advisory

sentence of four years, to be served in the Indiana Department of Correction, with 366


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days of credit for time served and 366 days good time credit for a total of 732 days credit.

When sentencing Ewing, the trial court considered as mitigating circumstances the facts

that Ewing had lived a sober life for fifteen years and that he worked to support his

family. As an aggravating circumstance, the trial court considered the extent of the injury

to the victim. Ewing now appeals.

                            DISCUSSION AND DECISION

                             Issue One: Abuse of Discretion

       Ewing first contends that the trial court abused its discretion when it sentenced

him to the advisory sentence of four years’ imprisonment. Sentencing decisions rest

within the sound discretion of the trial court and are reviewed on appeal only for an abuse

of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on other

grounds on reh’g, 875 N.E.2d 218 (Ind. 2007). 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.

       One way in which a trial court may abuse its discretion is failing to enter a
       sentencing statement at all. Other examples include entering a sentencing
       statement that explains reasons for imposing a sentence—including a
       finding of aggravating and mitigating factors if any—but the record does
       not support the reasons, or the sentencing statement omits reasons that are
       clearly supported by the record and advanced for consideration, or the
       reasons given are improper as a matter of law . . . .

              [However, b]ecause the trial court no longer has any obligation to
       “weigh” aggravating and mitigating factors against each other when
       imposing a sentence, . . . a trial court can not now be said to have abused its
       discretion in failing to “properly weigh” such factors.

Id. at 490-91.



                                             4
       Specifically, Ewing asserts that the aggravating circumstance used by the trial

court for sentencing, the extent of Daniels’ injuries, is not supported by the record.

Under Indiana Code Section 35-38-1-7.1-1(a)(1), to be considered an aggravating

circumstance, the harm, injury, or loss suffered by the victim must be significant and

greater than the elements necessary to prove commission of the offense. To find Ewing

guilty of Class C felony battery, the State had to show that the battery resulted in “serious

bodily injury” to Daniels. Ind. Code § 35-42-2-1(a)(3). “Serious bodily injury” is

defined as an injury that creates a substantial risk of death or causes serious permanent

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

impairment of the function of a bodily member or organ, or loss of a fetus. Ind. Code §

35-41-1-25.

       Here, Daniels testified that when Ewing broke his nose “it hurted bad [sic].”

Transcript at 75. Daniels’ statement is sufficient evidence of “serious bodily injury” for

purposes of a Class C felony battery conviction under Indiana Code Section 35-42-2-

1(a)(3). See Ind. Code § 35-42-2-1(a)(3). To be considered an aggravator, the extent of

the injury needs only to be greater than that required to prove the element of “serious

bodily injury” for the Class C felony battery conviction. Ind. Code § 35-38-1-7.1-1(a)(1).

The record shows that, beyond a broken nose, the extent of Daniels’ injuries included a

broken thumb, a cut under his eye that required stitches and resulted in a scar, a cut on his

lip that required stitches, a laceration to his leg that required staples, contusions on his

face and shoulder, and sinus problems resulting from his broken nose. Therefore, the




                                             5
trial court did not abuse its discretion when it found the extent of Daniels’ injuries to be

greater than that necessary to prove the battery allegation.

                             Issue Two: Appellate Rule 7(B)

       Ewing next contends that his sentence is inappropriate in light of the nature of the

offense and his character. Although a trial court may have acted within its lawful

discretion in determining a sentence, Article VII, Sections 4 and 6 of the Indiana

Constitution “authorize[] independent appellate review and revision of a sentence

imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007)

(alteration original). This appellate authority is implemented through Indiana Appellate

Rule 7(B). Id. Revision of a sentence under Appellate Rule 7(B) requires the appellant

to demonstrate that his sentence is inappropriate in light of the nature of his offense and

his character. See Ind. Appellate Rule 7(B); Rutherford v. State, 866 N.E.2d 867, 873

(Ind. Ct. App. 2007). We assess the trial court’s recognition or non-recognition of

aggravators and mitigators as an initial guide to determining whether the sentence

imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006).

However, “a defendant must persuade the appellate court that his or her sentence has met

th[e] inappropriateness standard of review.”       Roush, 875 N.E.2d at 812 (alteration

original).

       Moreover, “sentencing is principally a discretionary function in which the trial

court’s judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d

1219, 1222 (Ind. 2008). Indiana’s flexible sentencing scheme allows trial courts to tailor

an appropriate sentence to the circumstances presented. See id. at 1224. The principal


                                              6
role of appellate review is to attempt to “leaven the outliers.” Id. at 1225. Whether we

regard a sentence as inappropriate at the end of the day turns on “our sense of the

culpability of the defendant, the severity of the crime, the damage done to others, and

myriad other facts that come to light in a given case.” Id. at 1224.

       Ewing requests this court to revise his sentence to three years or to suspend a

portion of his four-year sentence and place him on probation for the suspended term.

Because the “advisory sentence is the starting point our General Assembly has selected as

an appropriate sentence for the crime committed, the defendant bears a particularly heavy

burden in persuading us that his sentence is inappropriate when the trial court imposes the

advisory sentence.” Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011)

(citing Golden v. State, 862 N.E.2d 1212, 1216 (Ind. Ct. App. 2007), trans. denied), trans.

denied.

       Regarding the nature of the offense, Ewing arrived unexpectedly at Daniels’ home

and, when he was asked to leave, attacked Daniels from behind. Ewing then continued to

fight Daniels, demanding money several times, and ultimately caused Daniels to suffer a

broken nose, a broken thumb, a cut under his eye that required stitches and resulted in a

scar, a cut to his lip that required stitches, a laceration to his leg that required staples,

multiple contusions on his face and shoulder, as well as continuing sinus issues stemming

from his broken nose. Despite Ewing’s contentions that his conduct was not “overly

violent” and that he did not cause serious injury to the victim, we cannot say that the

advisory sentence is inappropriate in light of the nature of Ewing’s offense. Appellant’s

Br. at 6.


                                             7
       Neither is the advisory sentence inappropriate in light of Ewing’s character. At

the sentencing hearing, the trial court found, as a mitigating factor, that Ewing had lived a

sober life for fifteen years and supported his family. Nevertheless, Ewing’s criminal

history includes multiple felony convictions, including two convictions for possession of

a controlled substance and one for attempted murder.

       We hold that, under these facts and circumstances, the four-year advisory sentence

is not inappropriate.

       Affirmed.

RILEY, J., and DARDEN, J., concur.




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