 Pursuant to Ind. Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of                           Dec 24 2014, 9:27 am
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:
MARK OLIVERO                                      GREGORY F. ZOELLER
Fort Wayne, Indiana                               Attorney General of Indiana

                                                  BRIAN REITZ
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

REGINALD GREENWELL,                               )
                                                  )
       Appellant-Defendant,                       )
                                                  )
           vs.                                    )         No. 02A03-1403-CR-100
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )

                      APPEAL FROM THE ALLEN SUPERIOR COURT
                           The Honorable Wendy Davis, Judge
                             Cause No. 02D05-1310-FD-1116


                                       December 24, 2014
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
        Following a bench trial, Reginald Greenwell (“Greenwell”) was convicted in

Allen Superior Court of Class D felony battery and of being a habitual offender.

Greenwell was sentenced to an aggregate term of seven and one-half years in the

Department of Correction. Greenwell appeals and presents three issues for our review,

which we renumber and restate as:

        I. Whether the trial court erred in denying Greenwell’s motion to dismiss under
        Criminal Rule 4(B);

        II. Whether the State presented evidence sufficient to support Greenwell’s
        conviction;

        III. Whether the trial court abused its discretion in sentencing Greenwell; and

        IV. Whether Greenwell’s aggregate seven and one-half year is inappropriate in
        light of the nature of the offense and the character of the offender.

        We affirm.

                                  Facts and Procedural History

        On August 15, 2013, Greenwell, who was being held for a parole violation in a

block of the Allen County Jail used for disciplinary segregation, requested that Officer

Timothy Stotlar (“Officer Stotlar”) of the Allen County Sherriff’s Department allow

Greenwell his allotted time of one hour outside of his cell. 1 Officer Stotlar told

Greenwell that he had been informed that Greenwell had already received his hour out

but that he would confirm that information. Greenwell became angry and called Officer

Stotlar a “p*ssy, b*tch, mother f*cker.” Ex. Vol., Ex. 8, p. 9. Greenwell then began



1
 Inmates housed in the jail’s disciplinary segregation blocks are allowed one hour per day outside of their
cells.

                                                    2
kicking his cell door and threatened to “beat [Officer Stotlar’s] ass.” Ex. Vol., Ex. 8, p.

10.

       Officer Stotlar contacted Corporal Clinton Hake (“Corporal Hake”), who, along

with Officer Kayle Schlemmer (“Officer Schlemmer”), entered Greenwell’s cell to speak

with him.    Corporal Hake told Greenwell that he would investigate the matter of

Greenwell’s hour outside of his cell and reprimanded him for kicking the cell’s door.

Greenwell became agitated again, and when he raised his fists threateningly, Corporal

Hake began to walk backwards out of the cell and told Greenwall to move to the back of

the cell. When the officers attempted to close the door of Greenwell’s cell, Greenwell

pushed against the door.     The officers were able to shut the door, but Greenwell

continued to behave aggressively, cursing and threatening to “kick [the officers’] asses.”

Trial Tr. pp. 44.

       Corporal Hake ordered that Greenwell be moved to a different unit and that two

officers be present any time Greenwell’s cell door was opened. About an hour later,

Corporal Hake, Officer Schlemmer, Sergeant Craig Knox (“Sergeant Knox”), and

Lieutenant Vance Pruden (“Lieutenant Pruden”) returned to Greenwell’s cell to transfer

him. Corporal Hake ordered Greenwell to move to the back of the cell, which Greenwell

did. However, when the cell door opened, Greenwell stepped forward and raised his

hands. Corporal Hake attempted to push Greenwell away from the door, but Greenwell

dodged Corporal Hake and began to throw close-fisted punches at the officers, striking

Sergeant Knox above the left eyebrow. Lieutenant Prudent sprayed Greenwell with

pepper spray, and Greenwell fell to the ground but continued to punch and kick, kicking

                                            3
Sergeant Knox in the stomach. Even after Greenwell crawled under a bunk in the cell, he

continued to throw punches and struck Sergeant Knox in the nose. Eventually, Greenwell

declared, “I give up,” and the officers were able to pull Greenwell from underneath the

bunk. Trial Tr. p. 34.

       On October 9, 2013, the State charged Greenwell with Class D felony battery of a

law enforcement officer. Greenwell was later charged with being a habitual offender.

Two days after he was charged, on October 11, 2013, Greenwell requested a speedy trial.

Six days later, on October 17, 2013, Greenwell requested a jury trial, and the trial court

scheduled Greenwell’s trial for December 17, 2013.

       On December 6, 2013, Greenwell withdrew his demand for a jury trial. On

December 17, 2013, the trial court continued Greenwell’s trial to February 10, 2014,

citing court congestion as the reason for the delay. Greenwell filed a motion to dismiss

the case on January 9, 2014, arguing that he was entitled to be discharged pursuant to

Criminal Rule 4(B) since more than seventy days had passed without a trial. The court

held a hearing on Greenwell’s motion, after which it denied the motion, finding that the

fifty-five day lapse from the date of the continued jury trial to the date of the bench trial

was reasonable since it was the first available date on the trial court’s calendar due to a

prior speedy trial request from another defendant.

       Following the bench trial on February 10, 2014, the trial court found Greenwell

guilty as charged. The trial court also found Greenwell to be a habitual offender. At

Greenwell’s March 10, 2014 sentencing hearing, Greenwell expressed regret over

Sergeant Knox’s injury and stated that he “would first like to take full responsibility for

                                             4
me being the aggressor[.]” Tr. p. 7. He denied, however, striking any of the officers and

insisted, “I feel as though I was the true victim in this case[.]” Tr. pp. 7-8. He also

argued that the trial court should consider as mitigating factors his goal of obtaining a

GED and that he has a minor child.

       The trial court found Greenwell’s criminal history, which included five prior

felony convictions and sixteen prior misdemeanor convictions; his prior failed

rehabilitation attempts; his pattern of similar offenses; his high risk for reoffending; and

the fact that he was in jail for a parole violation at the time of the present offense to be

aggravating factors. The trial court found no mitigating factors, noting that it did not

consider Greenwell’s goal of obtaining a GED to be a mitigator and that the fact that

Greenwell has a minor child “hasn’t seemed to stop [him] from committing the offenses

in [his] past.” Sentencing Tr. pp. 9-10. The trial court sentenced Greenwell to three

years in the Department of Correction for Class D felony battery and four and one-half

years for the habitual offender enhancement, for an aggregate term of seven and one-half

years. Greenwell now appeals.

                                  I. Criminal Rule 4(B)

       Greenwell argues that the trial court erred by failing, after a continuance due to

court congestion, to reschedule his trial within a reasonable time and by “not reducing the

continuance and resetting to an Order.” Appellant’s Br. at 21.

       Indiana Criminal Rule 4(B) provides that “[i]f any defendant held in jail on an

indictment or an affidavit shall move for an early trial, he shall be discharged if not

brought to trial within seventy (70) calendar days from the date of such motion.” Ind.

                                             5
Crim. Rule 4(B)(1). An exception to this rule occurs where congestion of the court

calendar prevents the trial from occurring within the seventy-day period. Id.

         Here, the trial court made a finding of congestion based on undisputed facts. As

such, “the standard of review—like for all questions of law—is de novo.” Austin v. State,

997 N.E.2d 1027, 1039 (Ind. 2013). Furthermore, “the ultimate reasonableness of the

trial court’s findings [regarding court congestion] depends very much upon the facts and

circumstances of the particular case.” Id.

         While Criminal Rule 4(B) requires “a prioritized treatment,” it “does not

necessarily present a bright-line approach whereby all other cases must yield to the

defendant who files a speedy trial motion.” Id. at 1040. As articulated by our supreme

court:

         we do not intend to suggest that a trial judge must necessarily wipe his or
         her calendar clean, or jam a trial into an opening in a schedule or courtroom
         that lacks the space, time, and resources to accommodate it. They must,
         however, be mindful of their calendar and the seventy-day window and
         exercise all reasonable diligence to preserve the defendant’s right to a
         speedy trial.

Id.

         Greenwell “acknowledges that there was court congestion sufficient to justify a

continuance of his speedy trial.” Appellant’s Br. at 21. He contends, however, that the

trial court erred in not “reducing the continuance and resetting to an Order,” Appellant’s

Br. at 21, and instead noting in its CCS, “Bench trial reset. Case continued per court

congestion. Def speedy trial request stands” and “Bench Trial scheduled for 02/10/2014

at 1:00 PM.” Appellant’s App. p. 4. He also argues that the fifty-five day delay between


                                              6
the original trial date and the continued trial date was unreasonable and that “[i]nquiry

should and could have been made to see if another Judge or Magistrate would have been

available to hear the case.” Appellant’s Br. at 22.

       We reject Greenwell’s first argument as one of form over substance. Greenwell

cites no case, and we are not aware of any case, that compels the trial court to reduce its

continuance and finding of congestion to a written order, rather than a CCS entry, to

satisfy the requirements of Criminal Rule 4. See City of Indianapolis v. Hicks, 932

N.E.2d 227, 232 (Ind. Ct. App. 2010) (“The CCS meets the general requirements for a

valid memorial, in that it is found in the records of the case, is required by the trial rules

to be kept, shows actions taken by the trial court, and its entries presumably exist

contemporaneously with the actions they describe”); see also Ind. Trial Rule 77(B) (CCS

is “an official record of the trial court”).

       Greenwell also argues that the fifty-five day delay caused by the continuance was

unreasonable. We review the trial court’s determination of a reasonable delay under an

abuse of discretion standard. Alter v. State, 860 N.E.2d 874, 877 (Ind. Ct. App. 2007).

The reasonableness of any delay must be judged in the context of the particular

circumstances of the case, and absent an abuse of discretion, the trial court’s decision will

not be disturbed. Sholar v. State, 626 N.E.2d 547, 549 (Ind. Ct. App. 1993).

       Greenwell filed his request for a speedy trial on October 11, 2013, and then added

his request for a jury trial six days later, on October 17. The original trial date was

December 17, 2013, three days before the seventy-day deadline imposed by Criminal

Rule 4(B). On December 17, the court made a finding of congestion due to a speedy trial

                                               7
request made by another defendant prior to Greenwell’s request and rescheduled the trial

for February 10, 2014, fifty-five days after the original trial date and fifty-two days after

the close of Criminal Rule 4(B)’s seventy-day window. Greenwell does not dispute the

trial court’s finding of congestion. Evidence presented at the hearing on Greenwell’s

motion to dismiss indicates that, after the continuance, the trial court scheduled

Greenwell’s trial for the first available date on the trial court’s calendar. Greenwell’s

speculation that the trial court failed to inquire as to whether another judge or magistrate

could hear the case does not amount to a showing that the delay was unreasonable. See

Foster v. State, 795 N.E.2d 1078 (Ind. Ct. App. 2003) (“Trial court’s rescheduling of trial

date to seventy days outside statutory speedy trial period due to court congestion was

reasonable and did not entitle defendant to bond reduction, release, or discharge, where

court was presiding over other trials on both originally scheduled and rescheduled trial

dates). We therefore conclude that the trial court did not abuse its discretion in denying

Greenwell’s motion to dismiss under Indiana Criminal Rule 4(B).

                             II. Sufficiency of the Evidence

       Greenwell asserts that there is insufficient evidence to support his conviction for

Class D felony battery. Specifically, he argues that the State failed to provide evidence

sufficient to prove that he struck Sergeant Knox or caused Sergeant Knox’s injury. When

reviewing the sufficiency of the evidence, we examine only the probative evidence and

reasonable inferences therefrom supporting a guilty judgment. Lock v. State, 971 N.E.2d

71, 74 (Ind. 2012). We will not assess witness credibility, nor reweigh the evidence to

determine if it was sufficient to support a conviction. Id. Those roles are reserved

                                             8
exclusively for the finder of fact, not appellate courts. Id. We must consider only the

evidence most favorable to the conviction and will affirm unless no reasonable fact-finder

could have found the crime proven beyond a reasonable doubt. Id.

      A person who knowingly or intentionally touches a law enforcement officer

engaged in the officer’s official duty in a rude, insolent, or angry manner, resulting in

bodily injury to the officer, commits Class D felony battery. Ind. Code § 35-42-2-

1(2)(A). Any touching, no matter how slight, may constitute battery. K.D. v. State, 754

N.E.2d 36, 40 (Ind. Ct. App. 2001). A defendant need not directly touch a victim, so

long as he or she touches something, such as apparel, that is intimately connected with

the victim. Id. Also, the touching may be accomplished directly by the defendant or by

any other substance put in motion by the defendant. Matthews v. State, 476 N.E.2d 847,

850 (Ind. 1985).

      Greenwell argues that the evidence is insufficient to show that he was the person

who struck Sergeant Knox because Sergeant Knox’s injury could have been caused when

he accidentally came into contact with the other officers’ equipment during the scuffle in

Greenwell’s cell. Greenwell further argues that, even if he was the person who struck

Sergeant Knox and caused his injury, the contact did not occur until after Greenwell had

been sprayed with pepper spray, rendering his actions neither knowing nor intentional

since “[n]o person in that condition could be said to knowingly or intentionally strike

someone if they can not see what they are doing.” Appellant’s Br. at 14.

      Sergeant Knox testified that Greenwell punched him in the face, causing him pain

and that, after being sprayed with pepper spray, Greenwell struck Sergeant Knox again

                                            9
and kicked Sergeant Knox in the stomach. Corporal Hake, Officer Schlemmer, and

Lieutenant Pruden also testified that Greenwell punched Sergeant Knox in the face.

Officer Stotlar testified that, prior to the incident, Greenwell kicked his cell door, cursed,

called him names, and threatened to “beat [Officer Stotlar’s] ass.” Ex. Vol., Ex. 8, p. 10.

When Corporal Hake and Officer Schlemmer arrived at Greenwell’s cell, he also

threatened to “beat [their] asses.” Trial Tr. p. 44. After Greenwell was sprayed with

pepper spray, he continued to kick and punch from underneath his bunk. This evidence

supports the trial court’s judgment that Greenwell touched Sergeant Knox in a rude,

insolent, or angry matter. Greenwell’s argument to the contrary amounts to a request that

we reweigh the evidence, which we will not do. See McHenry v. State, 820 N.E.2d 124

(Ind. 2005). We therefore conclude that the State provided sufficient evidence to support

Greenwell’s conviction for Class D felony battery.

                                      III. Sentencing

       A. Abuse of Discretion

       Greenwell argues that the trial court abused its discretion by failing to “properly

consider certain mitigating circumstances argued by the defense at Mr. Greenwell’s

sentencing hearing that were supported by the record.” Appellant’s Br. at 16.

       “[S]entencing 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 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. Id. The trial court may abuse its discretion in sentencing by:

                                             10
        (1) failing to enter a sentencing statement, (2) entering a sentencing
       statement that explains reasons for imposing the sentence but the record
       does not support the reasons, (3) the sentencing statement omits reasons
       that are clearly supported by the record and advanced for consideration, or
       (4) the reasons given in the sentencing statement are improper as a matter
       of law.

Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012) (citing Anglemyer, 868 N.E.2d at

490-91).

       Greenwell argues that the trial court should have recognized as mitigating the fact

that Greenwell has one dependent child and the fact that he “plans to abstain from further

criminal activity by obtaining a GED.” Appellant’s Br. at 17. He further argues that

Sergeant Knox’s injury was minor and that Sergeant Knox did not request restitution or

submit a victim’s statement to the court.

       The failure to find a mitigating circumstance clearly supported by the
       record may imply that the trial court overlooked the circumstance. The trial
       court, however, is not obligated to consider “alleged mitigating factors that
       are highly disputable in nature, weight, or significance.” The trial court
       need enumerate only those mitigating circumstances it finds to be
       significant. On appeal, a defendant must show that the proffered mitigating
       circumstance is both significant and clearly supported by the record.

Rawson v. State, 865 N.E.2d 1049, 1056 (Ind. Ct. App. 2007) (internal citations omitted),

trans. denied.

       Here, Greenwell has failed to show how the proffered mitigating circumstances

are either significant or clearly supported by the record. As the trial court noted, the fact

that Greenwell has a minor child has failed to deter him from committing crimes in the

past. Furthermore, the record indicates that the child lives in Georgia with its mother and

that Greenwell, who has been unemployed for the past five years, has not been ordered to


                                             11
pay child support. Greenwell makes no showing that his incarceration will impose an

undue hardship on his child and, indeed, stated that he has “been locked up the majority

of [the child’s] life.” Sent. Tr. p. 8. Furthermore, the trial court was not required to

assign mitigating weight to Greenwell’s statement that he planned to obtain a GED. See

Davis v. State, 835 N.E.2d 1102, 1116 (Ind. Ct. App. 2005). Regarding Greenwell’s

argument that the injury to Sergeant Knox was minor, he failed to offer this argument at

his sentencing hearing, and it is therefore waived. See Hollin v. State, 877 N.E.2d 462

(Ind. 2007) (if the defendant does not advance a factor to be mitigating at sentencing, the

reviewing court will presume that the factor is not significant and the defendant is

precluded from advancing it as a mitigating circumstance for the first time on appeal).

Waiver notwithstanding, the trial court was within its discretion to assign no mitigating

weight to the fact that Sergeant Knox’s injuries were not serious. See Stark v. State, 489

N.E.2d 43, 48 (Ind. 1986).

       B. Inappropriate Sentence

       Greenwell next argues that the sentence imposed by the trial court is inappropriate.

Even if a trial court acted within its statutory discretion in imposing a sentence, Article 7,

Sections 4 and 6 of the Indiana Constitution authorize independent appellate review and

revision of a sentence imposed by the trial court. Trainor v. State, 950 N.E.2d 352, 355-

56 (Ind. Ct. App. 2011), trans. denied (citing Anglemyer v. State, 868 N.E.2d 482, 491

(Ind. 2007)). This authority is implemented through Indiana Appellate Rule 7(B), which

provides that the court on appeal “may revise a sentence authorized by statute if, after due



                                             12
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.” Id.

       Still, we must and should exercise deference to a trial court’s sentencing decision,

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. Id. Although we have the power to review and revise sentences, the principal

role of our review should be to attempt to level the outliers and identify some guiding

principles for trial courts and those charged with improvement of the sentencing statutes,

but not to achieve what we perceive to be a “correct” result in each case. Fernbach v.

State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied (citing Cardwell v.

State, 895 N.E.2d 1219, 1225 (Ind. 2008)). The appropriate question is not whether

another sentence is more appropriate; instead, the question is whether the sentence

imposed is inappropriate. Former v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). It

is the defendant’s burden on appeal to persuade us that the sentence imposed by the trial

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

       We initially note that Greenwell fails to make any independent argument under

Rule 7(B) that his sentence is inappropriate given the nature of his offense or his

character. He has therefore waived this argument for review. Patterson v. State, 846

N.E.2d 723, 727 (Ind. Ct. App. 2006). Waiver notwithstanding, Greenwell’s sixteen

prior misdemeanor convictions and five prior felony convictions do not speak well for his

character, nor does his statement that he was the “true victim” in this case. Sentencing

Tr. pp. 7-8. With regard to the nature of the offense, we note that Greenwell screamed

                                             13
profanities, punched, kicked, and threatened officers. He struck Sergeant Knox above the

eye, in the nose, and in the stomach. Under these facts and circumstances, the sentence

imposed was not inappropriate given the nature of the offense and the character of the

offender.

                                        Conclusion

       For all of these reasons, we conclude that the trial court did not err in denying

Greenwell’s motion to dismiss.       The State presented evidence sufficient to support

Greenwell’s conviction for Class D felony battery. The trial court did not abuse its

discretion in failing to assign any mitigating weight to Greenwell’s proffered mitigating

factors. Lastly, waiver notwithstanding, the sentenced imposed on Greenwell was not

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

       Affirmed.

       RILEY, J., and CRONE, J., concur.




                                             14
