MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                               FILED
regarded as precedent or cited before any                                   Apr 03 2019, 10:13 am
court except for the purpose of establishing
                                                                                    CLERK
the defense of res judicata, collateral                                         Indiana Supreme Court
                                                                                   Court of Appeals
estoppel, or the law of the case.                                                    and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Carlos I. Carrillo                                        Curtis T. Hill, Jr.
Law Office of Carlos I. Carrillo, LLC                     Attorney General of Indiana
Greenwood, Indiana
                                                          Erik J. Bryant
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lawrence A. Bell,                                         April 3, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2453
        v.                                                Appeal from the Tippecanoe
                                                          Superior Court
State of Indiana,                                         The Honorable Randy J. Williams,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          79D01-1804-F5-65



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2453 | April 3, 2019                           Page 1 of 9
                                        Statement of the Case
[1]   Lawrence A. Bell appeals his conviction and sentence for battery, as a Level 5

      felony, and his adjudication as a habitual offender. Bell presents two issues for

      our review:


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

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


[2]   We affirm.


                                  Facts and Procedural History
[3]   Bell suffers from bipolar disorder with psychotic features, paranoia, and

      schizophrenia. On April 2, 2018, Bell, then an inmate at the Tippecanoe

      County Jail, contacted jail personnel by intercom to request that he be moved to

      a different cell. Bell stated that if he was not allowed to move, “something bad

      was going to happen.” Tr. at 18. A short time after his request to move was

      denied, Bell picked up a mop wringer and walked over to where his cell mate,

      David Bibbs, was watching television. Bell then, without any provocation,

      struck Bibbs over the head with the mop wringer, knocking Bibbs unconscious.

      Bell then struck Bibbs twice more with the mop wringer before two inmates

      intervened and persuaded Bell to stop.


[4]   The State charged Bell with two counts of battery, as Level 5 felonies, and

      criminal recklessness, as a Level 6 felony. The State also alleged that Bell was a

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2453 | April 3, 2019   Page 2 of 9
      habitual offender. Following a bench trial, the trial court found Bell guilty as

      charged, but entered judgment of conviction only on the Level 5 felony count of

      battery, and the court adjudicated Bell to be a habitual offender. At sentencing,

      the trial court identified three aggravators and three mitigators and imposed a

      nine-year aggregate sentence, with five years suspended to probation. This

      appeal ensued.


                                     Discussion and Decision
                                 Issue One: Sufficiency of the Evidence

[5]   Bell first contends that the State presented insufficient evidence to support his

      battery conviction. As our Supreme Court has stated:


              When an appeal raises “a sufficiency of evidence challenge, we
              do not reweigh the evidence or judge the credibility of the
              witnesses, and we respect a fact-finder’s ‘exclusive province to
              weigh conflicting evidence.’” Joslyn v. State, 942 N.E.2d 809, 811
              (Ind. 2011) (quoting Alkhalidi v. State, 753 N.E.2d 625, 627 (Ind.
              2001)). We consider only the probative evidence and the
              reasonable inferences that support the verdict. Tharp v. State, 942
              N.E.2d 814, 816 (Ind. 2011). “We will 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.’” Joslyn, 942 N.E.2d at 811
              (quoting Tobar v. State, 740 N.E.2d 109, 111-12 (Ind. 2000)).


      Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018).


[6]   To prove battery, as a Level 5 felony, as charged here, the State was required to

      show that Bell knowingly or intentionally touched Bibbs in a rude, insolent, or


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2453 | April 3, 2019   Page 3 of 9
      angry manner by means of a deadly weapon. Ind. Code § 35-42-2-1 (2018). On

      appeal, Bell first maintains that the State did not prove that he was the man

      who committed the battery against Bibbs. Bell also claims that the State did not

      prove that he knowingly or intentionally committed the battery. We address

      each contention in turn.


                                                       Identity

[7]   Bell contends that the State did not present any testimony to prove that Bell is

      the person who struck Bibbs. Indeed, our review of the transcript shows that,

      while Lieutenant Robert Hainje testified that, based on his review of

      surveillance footage of the battery, he identified Bell as “a suspect,” he did not

      definitively state that Bell had committed the battery. Tr. at 8. And the State

      did not present any eyewitness testimony to identify Bell as the perpetrator.


[8]   But Lieutenant Hainje’s testimony was not the only identity evidence. As the

      State points out, the trial court watched surveillance video of the battery, and

      the court could have concluded from that video that Bell was the man who

      struck Bibbs with the mop wringer.1 In addition, the State presented

      circumstantial evidence to prove that Bell was the perpetrator, including

      evidence that he had asked to move to a different cell over the intercom before

      the battery, as well as testimony that Bell could be seen holding the mop




      1
        The surveillance video was not provided to this Court on appeal. Regardless, Bell does not dispute (not
      that he even could without the video) the State’s contention that the video shows Bell committing the battery
      against Bibbs.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2453 | April 3, 2019                     Page 4 of 9
       wringer shortly before the battery. We cannot say that the evidence is

       insufficient to prove that Bell is the person who committed the battery against

       Bibbs.


                                                     Mens Rea

[9]    Bell also contends that, because he has a severe mental illness, the evidence

       does not show that he knowingly or intentionally committed the battery against

       Bibbs. In short, Bell maintains that the battery “was not explained by anything

       other than his mental illness.” Appellant’s Br. at 14. We cannot agree.


[10]   First, Bell did not present an insanity defense at his trial. Second, even if Bell

       had pleaded insanity, it would not have been the State’s burden to disprove

       Bell’s mental illness to prove that he acted knowingly and intentionally in this

       instance. See Cate v. State, 644 N.E.2d 546, 548 (Ind. 1994).


[11]   A person engages in conduct “intentionally” if, when he engages in the

       conduct, it is his conscious objective to do so, and a person engages in conduct

       “knowingly” if, when he engages in the conduct, he is aware of a high

       probability that he is doing so. Ind. Code § 35-41-2-2. Here, the State

       presented evidence, including video surveillance recordings, showing that Bell

       threatened that something bad would happen if he could not move to a new cell

       and that Bell, without provocation, struck Bibbs, his cell mate, three times with

       a mop wringer before two other inmates stopped him from striking him a fourth

       time. This evidence is sufficient to prove that Bell knowingly and intentionally

       committed battery.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2453 | April 3, 2019   Page 5 of 9
                                             Issue Two: Sentence

[12]   Bell contends that his sentence is inappropriate in light of the nature of the

       offense and his character. Indiana Appellate Rule 7(B) provides that “[t]he

       Court 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.” This Court

       has recently held that “[t]he advisory sentence is the starting point the

       legislature has selected as an appropriate sentence for the crime committed.”

       Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the Indiana

       Supreme Court has explained that:


               The principal role of appellate review should be to attempt to
               leaven the outliers . . . but not achieve a perceived “correct”
               result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
               2008). Defendant has the burden to persuade us that the
               sentence imposed by the trial court is inappropriate. [Anglemyer,
               868 N.E.2d at 494].


       Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in 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, 895 N.E.2d at 1222. 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.

       The question is not whether another sentence is more appropriate, but rather

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2453 | April 3, 2019   Page 6 of 9
       whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless

       overcome by compelling evidence portraying in a positive light the nature of the

       offense (such as accompanied by restraint, regard, and lack of brutality) and the

       defendant’s character (such as substantial virtuous traits or persistent examples

       of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[14]   Indiana Code Section 35-50-2-6(b) states that a person convicted of a Level 5

       felony shall be imprisoned for a fixed term between one and six years, with an

       advisory sentence of three years. Indiana Code Section 35-50-2-8 states in

       relevant part that, where a person has been convicted of a Level 5 felony and

       found to be a habitual offender, the court shall sentence him to an additional

       fixed term that is between two years and six years. Here, the trial court

       identified as aggravating circumstances Bell’s criminal history, his history of

       substance abuse, and his failed attempts at rehabilitation. The trial court

       identified as mitigating circumstances Bell’s mental illness, the victim’s wishes,2

       and Bell’s family support. The trial court found that the aggravators

       outweighed the mitigators and imposed five years for the Level 5 battery,

       suspended to probation, with a four-year habitual offender enhancement, which

       is non-suspendible, to be executed in the Department of Correction.




       2
         Bibbs wrote a letter to the trial court stating, in essence, that he did not think the State should have brought
       charges against Bell.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2453 | April 3, 2019                          Page 7 of 9
[15]   Bell maintains that his sentence is inappropriate in light of the nature of the

       offense because the battery was “sporadic, random, and without reasonable

       explanation” and could only be explained by his severe mental illness.

       Appellant’s Br. at 17. Bell asserts that jail personnel knew he was mentally ill

       and that his request to move “should have been granted for the safety of Bell

       and others.” Id. As for his character, Bell points out the evidence showing that

       the battery was an “impulsive reaction” consistent with his mental illness, as

       well as his mother’s testimony that he could be “kind” and “thoughtful” when

       he was “mentally stable.” Id. at 19.


[16]   We cannot say that Bell’s sentence is inappropriate in light of the nature of the

       offense. After Bell struck Bibbs with a mop wringer, which weighed

       approximately eight pounds, and knocked Bibbs unconscious, he struck Bibbs

       twice more with the mop wringer. Bell only stopped because two other inmates

       intervened. Bibbs had no memory of the attack, and he experienced “throbbing

       pain” in his head for a week. Tr. at 37-38.


[17]   Neither can we say that Bell’s sentence is inappropriate in light of his character.

       Bell’s criminal history is substantial. In particular, Bell has nine prior felony

       convictions and twenty-seven prior misdemeanor convictions, and his

       probation has been revoked five times. In addition, at the time Bell committed

       the battery against Bibbs, he was incarcerated awaiting trial on pending theft

       charges. Bell admitted to a history of substance abuse dating back to his

       teenage years, but he first sought substance abuse treatment in 2018. While Bell

       is clearly mentally ill, the trial court took that factor into consideration and gave

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2453 | April 3, 2019   Page 8 of 9
       it mitigating weight. In light of Bell’s extensive criminal history, we cannot say

       that his mental illness warrants a revised sentence.


[18]   Affirmed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2453 | April 3, 2019   Page 9 of 9
