MEMORANDUM DECISION                                                           FILED
                                                                          Jun 29 2018, 5:55 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         CLERK
                                                                          Indiana Supreme Court
regarded as precedent or cited before any                                    Court of Appeals
                                                                               and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                      Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana

                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Clyde D. Lewis, III,                                     June 29, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         31A04-1709-CR-2055
        v.                                               Appeal from the Harrison Superior
                                                         Court
State of Indiana                                         The Honorable Joseph L.
Appellee-Plaintiff                                       Claypool, Judge
                                                         Trial Court Cause No.
                                                         31D01-1512-F5-795



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 31A04-1709-CR-2055 | June 29, 2018              Page 1 of 9
[1]   Clyde D. Lewis appeals his conviction of Level 5 felony battery on a person less

      than fourteen years old. 1 Lewis argues the State did not present sufficient

      evidence to support his conviction and his sentence is inappropriate. We

      affirm.



                           Facts and Procedural History
[2]   On December 17, 2015, staff at Corydon Elementary School observed

      concerning markings on the back of a child, X.R., who was five years old. The

      school contacted the Department of Child Services, who then requested an

      officer investigate potential child abuse. Deputy Carrie Bowers, who has been

      specially trained to work with children, went to the school, where she met with

      X.R. and photographed his injuries. X.R. identified “Dad” as the one who

      caused the marks and explained that “Dad” was Lewis, X.R.’s step-father. (Tr.

      Vol. II at 12.)


[3]   The same day, Deputy Bowers also spoke with Lewis. Lewis acknowledged he

      had physically disciplined X.R. on December 11, 2015. Lewis said he used his

      hand to spank X.R. that day, but he admitted using a belt on other occasions.

      Lewis explained that, on December 11, after he disciplined X.R., he and his

      wife left X.R. at the home of X.R.’s aunt to stay there for a few nights. Lewis

      did not notice the marks on X.R. until X.R. returned home from his aunt’s




      1
          Ind. Code § 35-42-2-1 (2016).


      Court of Appeals of Indiana | Memorandum Decision 31A04-1709-CR-2055 | June 29, 2018   Page 2 of 9
      house. Lewis believed the marks could have come from X.R.’s aunt or from

      something at school.


[4]   On December 18, 2015, Lewis was interviewed by Detective Nick Smith.

      During the interview, Lewis admitted using a belt to discipline X.R. on multiple

      occasions. Lewis also said he “absolutely” could have caused the marks on

      X.R.’s back. (Tr. Vol. II at 47.) Lewis explained in detail the process of how he

      would discipline X.R. Lewis was arrested later that day and charged with Level

      5 felony battery on a person less than fourteen years old.


[5]   At trial, Deputy Bowers and Detective Smith testified about their meetings with

      Lewis. Deputy Smith testified he understood the statements Lewis made

      during the interview to be a confession. The court found Lewis guilty and

      sentenced him to four and a half years.



                            Discussion and Decision
                                  Sufficiency of Evidence
[6]   Lewis argues there was insufficient evidence to support his conviction. When

      considering the sufficiency of evidence, “a reviewing court does not reweigh the

      evidence or judge the credibility of the witnesses.” McHenry v. State, 820 N.E.2d

      124, 126 (Ind. 2005). We must affirm “if the probative evidence and reasonable

      inferences drawn from the evidence could have allowed a reasonable trier of

      fact to find the defendant guilty beyond a reasonable doubt.” Id. (internal

      citation omitted).


      Court of Appeals of Indiana | Memorandum Decision 31A04-1709-CR-2055 | June 29, 2018   Page 3 of 9
[7]   To be guilty of Level 5 felony battery as charged against Lewis, the State had to

      prove: (1) Lewis, (2) who is over the age of eighteen, (3) knowingly or

      intentionally, (4) touched X.R., (5) who is under the age of fourteen, (6) in a

      rude, insolent, or angry manner, (7) resulting in bodily injury to X.R. See Ind.

      Code § 35-42-2-1(g)(5)(B). Our legislature defined ‘bodily injury’ as “any

      impairment of physical condition, including physical pain,” Ind. Code § 35-

      31.5-2-29, and our Indiana Supreme Court has held simply poking a victim, as

      long as the victim feels physical pain, constitutes bodily injury. Bailey v. State,

      979 N.E.2d 133, 143 (Ind. 2012) (sufficient evidence of bodily harm caused by

      pushing and poking where victim experienced physical pain).


[8]   Lewis admits he physically disciplined X.R. He challenges, however, whether

      he was the one who caused X.R.’s bodily injury. 2 At trial, photographs of

      X.R.’s injuries were admitted into evidence. Deputy Bowers testified the marks

      on X.R.’s back were consistent with a belt. Additionally, Detective Smith’s

      interview of Lewis was entered into evidence and, in that recording, Lewis

      admits his actions could have caused the marks. Detective Smith, who

      conducted the interview, believed Lewis’ statements were a confession. Also at

      trial, X.R. testified his “Dad” left the marks. (Tr. Vol. 2 at 27.) Deputy Bowers




      2
       Lewis also argues the State failed to disprove that X.R.’s bruises are not from discipline by X.R.’s aunt. The
      State did not have a burden to disprove someone else was at fault for X.R.’s injuries. See Bruce v. State, 268
      Ind. 180, 194, 375 N.E.2d 1042, 1084-85 (1978) (State need not disprove all other possible causes). The State
      only had the burden to prove beyond reasonable doubt Lewis was guilty of battery. See Brent v. State, 957
      N.E.2d 648, 654 (Ind. Ct. App. 2011) (State only needed to present evidence allowing “reasonable inference
      of guilt”), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 31A04-1709-CR-2055 | June 29, 2018               Page 4 of 9
      testified that, when she first met with X.R., X.R. explained “Dad” was Lewis.

      (Tr. Vol. 2 at 20.) This was sufficient evidence to find Lewis guilty of battery.

      See, e.g., Hanic v. State, 406 N.E.2d 335, 338 (Ind. Ct. App. 1980) (holding

      bruises and scratches, combined with testimony of fight with defendant,

      sufficient to demonstrate bodily injury was from battery).


                                  Inappropriate Sentence
[9]   Lewis argues in light of his character and the nature of his offense, his sentence

      is inappropriate.


              We “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.” Ind. Appellate Rule 7(B).
              “Although appellate review of sentences must give due
              consideration to the trial court’s sentence because of the special
              expertise of the trial bench in making sentencing decisions,
              Appellate Rule 7(B) is an authorization to revise sentences when
              certain broad conditions are satisfied.” Shouse v. State, 849
              N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and
              quotation marks omitted). “[W]hether we regard a sentence as
              appropriate 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 factors that come to light in a
              given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
              In addition to the “due consideration” we are required to give to
              the trial court’s sentencing decision, “we understand and
              recognize the unique perspective a trial court brings to its
              sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873
              (Ind. Ct. App. 2007).




      Court of Appeals of Indiana | Memorandum Decision 31A04-1709-CR-2055 | June 29, 2018   Page 5 of 9
       Couch v. State, 977 N.E.2d 1013, 1017 (Ind. Ct. App. 2012), reh’g denied, trans.

       denied. The appellant bears the burden of demonstrating his sentence is

       inappropriate. Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011),

       trans. denied.


[10]   When considering the nature of the offense, the advisory sentence is the starting

       point for determining the appropriateness of a sentence. Anglemyer v. State, 868

       N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). For

       a Level 5 felony, the sentencing range is a fixed term of between one and six

       years, with the advisory sentence of three years. Ind. Code § 35-50-2-6. Lewis

       was sentenced to four and a half years, which is between the advisory sentence

       and the maximum sentence.


[11]   X.R. had bruises from a belt that were still noticeable a week after Lewis

       battered him. Indiana Code section 35-31.5-2-292(2) defines serious bodily

       injury as “bodily injury that creates a substantial risk of death or that causes

       extreme pain.” Although X.R. did not testify to being in extreme pain, this

       Court has held bruises and other injuries can be sufficient to demonstrate

       extreme pain even when there is no testimony of pain level. See Sutton v. State,

       714 N.E.2d 694, 697 (Ind. Ct. App. 1999) (photographs of bruises and witness

       testimony entitled a jury to infer the victim suffered extreme pain), reh’g denied,

       trans. denied; see also Whitlow v. State, 901 N.E.2d 659, 661-62 (Ind. Ct. App.

       2009) (victim testified being struck with a belt left her in extreme pain). Lewis

       inflicted a level of harm to X.R. that was more serious than the simple poke

       causing momentary pain that was required for his conviction.

       Court of Appeals of Indiana | Memorandum Decision 31A04-1709-CR-2055 | June 29, 2018   Page 6 of 9
[12]   When Lewis’ character is considered, one relevant fact is the defendant’s

       criminal history. Johnson v. State, 986 N.E.2d 852, 856 (Ind. Ct. App. 2013).

       Lewis had an active arrest warrant from Texas, but Lewis did not have a history

       of criminal activity. Lewis was, however, in a position of authority over X.R.

       Although he was not X.R.’s biological father, Lewis did fill the role of a father

       figure for X.R. Lewis was solely responsible for disciplining X.R. and X.R even

       referred to Lewis as “Pops” and “Dad.” (Tr. Vol. II at 12.) Lewis battering

       and bruising a child he was to be caring for does not speak well of Lewis’

       character. See Gellenbeck v. State, 918 N.E.2d 706, 713 (Ind. Ct. App. 2009)

       (defendant’s custodial relationship to the victim increased the severity of the

       crime). Considering Lewis’ position of authority over X.R., we cannot hold his

       sentence is inappropriate. See, e.g., Walter v. State, 727 N.E.2d 443, 449 (Ind.

       2000) (defendant’s position of authority found reasonable to uphold sentence).



                                               Conclusion
[13]   The evidence is sufficient to demonstrate Lewis left the marks on X.R’s back

       and therefore is guilty of battery. In light of Lewis’ character and the nature of

       his offense, the sentence of four and half years is not inappropriate.

       Accordingly, we affirm.


       Affirmed.


       Mathias, J., concurs


       Riley, J., concurs in part and dissents in part with a separate opinion.
       Court of Appeals of Indiana | Memorandum Decision 31A04-1709-CR-2055 | June 29, 2018   Page 7 of 9
                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Clyde D. Lewis, III,                                     Court of Appeals Case No.
                                                               31A04-1709-CR-2055
      Appellant-Defendant,

              v.

      State of Indiana
      Appellee-Plaintiff




      Riley, Judge concurring and dissenting


[1]   While I agree with the majority that the State presented sufficient evidence to

      establish Lewis’ conviction beyond a reasonable doubt, I respectfully dissent

      from the majority’s conclusion that his aggravated sentence is not inappropriate

      pursuant to Indiana Appellate Rule 7(B).


[2]   Lewis is a first-time offender and has no prior criminal convictions. His

      presentence investigation report indicates that Lewis is in a low category to re-

      offend. He does not abuse alcohol or drugs and was gainfully employed at the

      time of the offense. Although Lewis admitted to the offense and believed that


      Court of Appeals of Indiana | Memorandum Decision 31A04-1709-CR-2055 | June 29, 2018   Page 8 of 9
corporal punishment was a normal part of parenting, Lewis took well to the

offered guidance after learning that his choice of discipline was not acceptable.

While all crimes against children are heinous, the nature of the offense before

us is not more egregious than other, similar offenses. Accordingly, I cannot

conclude that an aggravated sentence is appropriate. Under the facts before me,

I would impose the advisory sentence of three years, with one and one-half-year

executed and the remainder referred to probation.




Court of Appeals of Indiana | Memorandum Decision 31A04-1709-CR-2055 | June 29, 2018   Page 9 of 9
