                                                                  FILED
                                                              Apr 28 2016, 6:14 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
John B. Norris                                             Gregory F. Zoeller
Vandivier Norris & Solomon                                 Attorney General of Indiana
Franklin, Indiana
                                                           Karl M. Scharnberg
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

Gerald W. Stephenson,                                      April 28, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           41A01-1507-CR-1030
         v.                                                Appeal from the Johnson Superior
                                                           Court
State of Indiana,                                          The Honorable Lance D. Hamner,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           41D03-1410-CM-1490



Najam, Judge.




Court of Appeals of Indiana |   Opinion   41A01-1507-CR-1030 | April 28, 2016            Page 1 of 10
                                          Statement of the Case
[1]   Gerald W. Stephenson appeals his conviction for battery, as a Class B

      misdemeanor, following a bench trial. Stephenson raises three issues on appeal,

      namely:

               1. Whether the State presented sufficient evidence to support his
                  conviction.

               2. Whether the trial court abused its discretion in sentencing
                  him.

               3. Whether his 180-day sentence for Class B misdemeanor
                  battery is inappropriate in light of the nature of the offense
                  and his character.


[2]   We affirm.


                                      Facts and Procedural History
[3]   Jessica Jordan and Stephenson were married for three years before divorcing,

      but they subsequently maintained a relationship. Jordan lived in Greenwood,

      Indiana and Stephenson lived in Canton, Ohio. Sometime in mid-October

      2014, Jordan and Stephenson agreed that Stephenson and his two dogs could

      stay at Jordan’s residence in Greenwood because Stephenson had a job

      interview that required him to fly out of the Indianapolis airport, and Jordan

      would be watching his dogs while he was gone.


[4]   On October 18, Jordan and Stephenson went to the Taxman Bar and

      Restaurant in Bargersville to have a few beers and watch a football game. At


      Court of Appeals of Indiana |   Opinion   41A01-1507-CR-1030 | April 28, 2016   Page 2 of 10
      around half-time, they left the Taxman and returned to Jordan’s home. Once

      back at Jordan’s home, Jordan began to prepare dinner while Stephenson

      watched the football game in the living room. At some point while cooking

      dinner, Jordan told Stephenson she suspected that he had taken some horse-

      riding spurs from her closet and given them to an eighteen-year-old girl who

      Jordan knew from Facebook and who, she believed, “had a thing for

      [Stephenson].” Tr. at 4, 7, 9. Stephenson and Jordan began to argue, and

      Stephenson then grabbed Jordan. Jordan attempted to push on Stephenson’s

      face to get him out of her way, and this caused abrasions to Stephenson’s face.

      Stephenson then pushed Jordan and, as she fell, she hit a coffee table. As

      Jordan attempted to get away from Stephenson, he grabbed at her and

      scratched her face. Jordan then went to the door of her apartment, opened it,

      and yelled out into the hallway.


[5]   While Stephenson and Jordan had been arguing, Jasmine Forrester, Jordan’s

      next door neighbor, heard a loud female voice from inside Jordan’s apartment

      and in the hallway saying, “I can’t breathe,” “I’m going to call my dad,” and

      “Stop it[,] you’re hurting me.” Id. at 17-19. Forrester called the police.

      Approximately five minutes later, Greenwood Police Officer Michele

      Richardson arrived at Jordan’s apartment. Before knocking on Jordan’s

      apartment door, Officer Richardson heard a female screaming from inside

      Jordan’s apartment. When the officer knocked on the door, the screaming

      stopped. Two to three minutes later, Stephenson opened the apartment door.

      Officer Richardson observed some abrasions on Stephenson’s face. After


      Court of Appeals of Indiana |   Opinion   41A01-1507-CR-1030 | April 28, 2016   Page 3 of 10
      obtaining Stephenson’s permission to enter the apartment, Officer Richardson

      found Jordan in the bedroom, crying, upset, and having difficulty breathing.

      The officer observed red marks on the right side of Jordan’s face. After

      speaking with Forrester, Jordan, and Stephenson, Officer Richardson arrested

      Stephenson for domestic battery.


[6]   The State charged Stephenson with domestic battery, as a Class A

      misdemeanor. After a bench trial, the trial court found Stephenson guilty of the

      lesser included offense of battery, as a Class B misdemeanor. After a sentencing

      hearing, the trial court noted that Stephenson had served little or no jail time for

      his past two domestic violence-related convictions and that Stephenson

      exhibited no remorse. The trial court found no factors in mitigation. The court

      sentenced Stephenson to the maximum sentence of 180 days to be served in the

      Johnson County Jail. This appeal ensued.


                                        Discussion and Decision
                                  Issue One: Sufficiency of the Evidence

[7]   Stephenson asserts that the State failed to present sufficient evidence to support

      his conviction. In reviewing a sufficiency of the evidence claim, we neither

      reweigh the evidence nor assess the credibility of the witnesses. See, e.g., Jackson

      v. State, 925 N.E.2d 369, 375 (Ind. 2010). We consider only the probative

      evidence and reasonable inferences therefrom that support the conviction,

      Gorman v. State, 968 N.E.2d 845, 847 (Ind. Ct. App. 2012), trans. denied, and we

      “consider conflicting evidence most favorably to the trial court’s ruling,” Wright


      Court of Appeals of Indiana |   Opinion   41A01-1507-CR-1030 | April 28, 2016   Page 4 of 10
      v. State, 828 N.E.2d 346, 352 (Ind. 2005). We affirm if the probative evidence

      and reasonable inferences drawn from that evidence “could have allowed a

      reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.”

      Jackson, 925 N.E.2d 375.


[8]   Pursuant to Indiana Code Section 35-42-2-1(b), to prove that Stephenson

      committed battery, as a Class B misdemeanor, the State was required to show

      that he knowingly or intentionally touched Jordan “in a rude, insolent, or angry

      manner.” The evidence most favorable to the trial court’s ruling showed that,

      while arguing with Jordan, Stephenson grabbed and scratched Jordan and

      pushed her, causing her to fall onto a coffee table. The testimony of Jordan,

      Officer Richardson, and Jordan’s neighbor, Forrester, provided sufficient

      evidence of those actions, and those actions constitute battery under the statute.


[9]   However, Stephenson insists that the evidence is insufficient because he

      provided testimony that it was Jordan who had instigated the violence and

      battered him. He points to photographs taken of his face after the incident,

      showing horizontal scratch marks. He contends that the fact that the scratches

      are horizontal proves that Jordan scratched him while he was laying down on

      the sofa watching football, not while he was attacking her. However,

      Stephenson is simply asking this court to reweigh the evidence, which we

      cannot do. The trial court clearly did not find Stephenson’s version of events

      credible, and we will not second-guess the court’s credibility assessment.

      Jackson, 925 N.E.2d 375.



      Court of Appeals of Indiana |   Opinion   41A01-1507-CR-1030 | April 28, 2016   Page 5 of 10
[10]   Stephenson also maintains that Jordan’s testimony that she scratched

       Stephenson’s face as she was trying to push him away from her was incredibly

       dubious because the scratch marks were horizontal, not vertical. Under the

       incredible dubiosity rule, a court will impinge upon the factfinder’s

       responsibility to judge the credibility of witnesses only when confronted with

       inherently improbable testimony or coerced, equivocal, wholly uncorroborated

       testimony of incredible dubiosity. Whatley v. State, 908 N.E.2d 276, 282 (Ind.

       Ct. App. 2009), trans. denied. However, application of the rule is limited to

       cases where a single witness presents inherently contradictory testimony which

       is equivocal or the result of coercion and there is a complete lack of

       circumstantial evidence of guilt. Id. Here, the State presented more than one

       witness, and there is ample circumstantial evidence of Stephenson’s guilt to

       support his conviction. Accordingly, the incredible dubiosity rule does not

       apply. See id. Even if the rule did apply, Jordan’s testimony regarding the

       scratches is not “so incredibly dubious or inherently improbable that it runs

       counter to human experience, and no reasonable person could believe it.”

       Jarrett v. State, 804 N.E.2d 807, 811 (Ind. Ct. App. 2004), aff’d. 829 N.E.2d 930

       (Ind. 2005). The State presented sufficient evidence to support Stephenson’s

       conviction.


                              Issue Two: Abuse of Discretion in Sentencing

[11]   Stephenson contends that the trial court abused its discretion by sentencing him

       to the maximum sentence for battery, as a Class B misdemeanor, namely, 180

       days fully executed. Ind. Code § 35-50-3-3. Specifically, he asserts that the trial

       Court of Appeals of Indiana |   Opinion   41A01-1507-CR-1030 | April 28, 2016   Page 6 of 10
       court erred by failing to find that mitigating factors outweighed the aggravating

       factors. However, the sentencing statute for Class B misdemeanors does not

       provide a presumptive or advisory sentence, but rather a maximum allowable

       sentence. Id.; Creekmore v. State, 853 N.E.2d 523, 527 (Ind. Ct. App. 2006).

       Therefore, the trial court was not required to articulate and balance aggravating

       and mitigating circumstances before imposing sentence on the misdemeanor

       conviction. Creekmore, 853 N.E.2d at 527. Nor was the trial court required to

       issue a sentencing statement with the misdemeanor conviction:

                it is clear that abuse of discretion review of a sentence, which
                concerns a trial court’s duty to issue a sentencing statement along
                with its findings of aggravators and mitigators, has no place in
                reviewing a misdemeanor sentence. See Cuyler v. State, 798
                N.E.2d 243, 246 (Ind. Ct. App. 2003), trans. denied; see also
                Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007) (stating that
                post-Blakely revisions to sentencing statutes included sentencing
                statement requirement “whenever imposing sentence for a felony
                offense”).


       Morris v. State, 985 N.E.2d 364, 367 (Ind. Ct. App. 2013) (emphasis original),

       aff’d in part, rev’d in part on other grounds on reh’g, 985 N.E.2d 364 (Ind. Ct. App.

       2013). Therefore, Stephenson’s abuse of discretion in sentencing claim is

       without merit.


                                 Issue Three: Appropriateness of Sentence

[12]   Stephenson also contends that his sentence is inappropriate in light of the

       nature of the offense and his character. Article 7, Sections 4 and 6 of the

       Indiana Constitution “authorize[] independent appellate review and revision of

       Court of Appeals of Indiana |   Opinion   41A01-1507-CR-1030 | April 28, 2016   Page 7 of 10
       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 Rule 7(B) requires the appellant to demonstrate that his sentence is

       inappropriate in light of the nature of his offenses 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).


[13]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224

       (Ind. 2008). The principal 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.


[14]   Stephenson first contends that the nature of the offense does not support an

       enhanced sentence. He bases this claim solely on his contention that Jordan

       provoked the violence. However, as we have already stated, the trial court

       Court of Appeals of Indiana |   Opinion   41A01-1507-CR-1030 | April 28, 2016   Page 8 of 10
       chose not to give that evidence credence, and we will not reweigh the evidence.

       Moreover, the nature of Stephenson’s offense was violent; he grabbed Jordan,

       knocked her down, and scratched her, causing abrasions to her face.


[15]   Stephenson also maintains that the sentence is inappropriate in light of his

       character. He points to evidence that he is a fifty-two-year-old, well-educated

       professional. He also points to his friend Dunbar’s testimony that Stephenson

       is a good person who has helped him when Dunbar was prevented from doing

       activities due to his physical disability and that Stephenson “has treated

       Dunbar’s son well and has been a good influence for him.”1 Appellant’s Br. at

       16. However, the trial court did not recognize any of this evidence as

       mitigating circumstances. Rather, the trial court focused on Stephenson’s

       criminal history, which it noted included two domestic-violence related

       convictions for which Stephenson also denied responsibility and showed no

       remorse. Stephenson also had three operating while intoxicated convictions

       and one disorderly conduct conviction that also reflect poorly on his character.

       See Rutherford, 866 N.E.2d at 874. Thus, we cannot say that his sentence was

       inappropriate in light of his character.




       1
         Stephenson also points to other evidence that relates not to his good character, but to Jordan’s alleged bad
       character, such as her past criminal history. This other evidence is not relevant to our analysis of
       Stephenson’s character under Rule 7(B).

       Court of Appeals of Indiana |   Opinion   41A01-1507-CR-1030 | April 28, 2016                      Page 9 of 10
                                                   Conclusion
[16]   The State has provided sufficient evidence to support Stephenson’s conviction;

       the trial court did not abuse its discretion in sentencing him to the maximum

       sentence; and Stephenson has failed to persuade us that his sentence is

       inappropriate in light of the nature of his crime and his character.


[17]   Affirmed.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana |   Opinion   41A01-1507-CR-1030 | April 28, 2016   Page 10 of 10
