MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),                                       Mar 07 2017, 9:25 am

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
P. Jeffrey Schlesinger                                   Curtis T. Hill, Jr.
Lake County Public Defender’s Office                     Attorney General
Appellate Division
                                                         Caryn N. Szyper
Crown Point, Indiana                                     Deputy Attorney General
                                                         Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

Robert B. Scoggins,                                      March 7, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1608-CR-1902
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Diane Ross
Appellee-Plaintiff                                       Boswell, Judge
                                                         Trial Court Cause No.
                                                         45G03-1412-F3-25



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1608-CR-1902 | March 7, 2017            Page 1 of 10
                                             Case Summary
[1]   Robert B. Scoggins appeals his conviction and eight-year sentence for level 3

      felony aggravated battery. He argues that the trial court abused its discretion in

      admitting photographs of the victim’s injuries. He also contends that the trial

      court abused its discretion in sentencing him by failing to recognize mitigating

      factors and that his sentence is inappropriate based on the nature of the offense

      and his character. We find no abuse of discretion in either the admission of

      evidence or in sentencing, and Scoggins has failed to carry his burden to show

      that his sentence is inappropriate. Therefore, we affirm.


                                 Facts and Procedural History
[2]   On December 19, 2014, Miriam Murray was living in an apartment with

      Scoggins, her boyfriend of over eleven years. That evening, Murray’s sister

      Gwendolyn Lambert was visiting them, and they were drinking beer and other

      alcohol. Earlier that day, Murray and Scoggins had also smoked marijuana.

      At some point, Scoggins received a phone call, and his mood changed. He

      began yelling at Murray about sending her son money. Murray attempted to

      get away from Scoggins by going into her bedroom. He followed her and

      continued yelling at her. When she exited the bedroom, Scoggins hit her in the

      face with his fist, causing her to fall to the ground. While Murray was on the

      ground, Scoggins hit her with a chair more than once. The leg of the chair

      struck Murray in the right eye. Lambert told Scoggins to stop, but he flipped

      her over Murray’s body, and she landed in the kitchen. Murray did not see

      much after that because she blacked out, but she remembered being hit and her

      Court of Appeals of Indiana | Memorandum Decision 45A03-1608-CR-1902 | March 7, 2017   Page 2 of 10
      sister asking Scoggins to stop. Scoggins yelled at the two women to get out.

      Murray and Lambert went into the bathroom to try to stop the bleeding from

      Murray’s eye. Then, they walked to a local hospital a block and a half from the

      apartment.


[3]   Murray was treated in the hospital’s emergency room. Her right eye was

      completely swollen, and she had a laceration under her eye that was five to

      seven centimeters long. A CAT scan showed a rupture of her right eyeball, a

      rupture of the lateral rectus muscle, which is on the nose side of the eye, and a

      “shattering fracture” of a portion of the medial orbit wall. Tr. at 105. Murray

      was transferred to a Chicago hospital for treatment by a specialist. On

      December 21, 2014, doctors removed her right eyeball.


[4]   The State charged Scoggins with level 3 felony aggravated battery, level 5

      felony battery by means of a deadly weapon, level 5 felony battery resulting in

      serious bodily injury, all naming Murray as the victim, and class A

      misdemeanor battery resulting in bodily injury to Lambert. At trial, the State

      offered into evidence exhibits 15 through 18, four photographs of Murray’s

      injuries taken at the local hospital by a police evidence technician. Exhibit 15

      shows Murray’s entire head, including her hand above her head, with her face

      turned slightly away from the camera. Exhibit 16 is a close-up of Murray’s eye

      and nose. Exhibit 17 is the same as exhibit 16 but with a ruler under her eye for

      reference. Exhibit 18 shows Murray’s entire face, with the camera looking

      square into her face. Scoggins objected to the admission of the photographs,



      Court of Appeals of Indiana | Memorandum Decision 45A03-1608-CR-1902 | March 7, 2017   Page 3 of 10
      which the trial court overruled. The State published only exhibits 15 and 18,

      not the close-ups.


[5]   At trial, Scoggins testified that Murray came at him with a knife, and he

      grabbed a chair in self-defense. Then, when Murray grabbed the chair, he let go

      of it, she fell over, and the knife and chair hit her in the face. The jury found

      Scoggins guilty of the felonies but not guilty of the misdemeanor. Based on

      double jeopardy principles, the trial court entered judgment of conviction only

      for level 3 felony aggravated battery.


[6]   At the sentencing hearing, the State requested a fourteen-year sentence, arguing

      that Scoggins was in a position of trust with the victim, had shown no remorse,

      and had a history of eleven prior arrests in three states. Scoggins argued that he

      was sixty-four years old with no criminal convictions. The trial court found

      that the circumstances surrounding the crime were a mitigating factor.1

      However, it found that Scoggins’s prior contacts with the criminal justice

      system indicated an anger issue and was an aggravating factor. It also found

      that Scoggins’s relationship with the victim was an aggravating factor. The trial

      court sentenced Scoggins to eight years in the Department of Correction. This

      appeal ensued.




      1
        The trial court did not explain why the circumstances of the crime would be mitigating, and neither do the
      parties.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1608-CR-1902 | March 7, 2017             Page 4 of 10
                                     Discussion and Decision

           Section 1 – The trial court did not abuse its discretion in
                              admitting evidence.
[7]   Scoggins asserts that the trial court erred in admitting four photographs of

      Murray’s injuries. This Court reviews the admission of photographic evidence

      only for an abuse of discretion. Pruitt v. State, 834 N.E.2d 90, 117 (Ind. 2005),

      cert. denied. “Generally, photographs that depict a victim’s injuries or

      demonstrate the testimony of a witness are admissible.” Ward v. State, 903

      N.E.2d 946, 958 (Ind. 2009). “‘Photographs, even those gruesome in nature,

      are admissible if they act as interpretative aids for the jury and have strong

      probative value.’” Corbett v. State, 764 N.E.2d 622, 627 (Ind. 2002) (quoting

      Swingley v. State, 739 N.E.2d 132, 133 (Ind. 2000)). However, even relevant

      photographic evidence may be excluded if its probative value is substantially

      outweighed by the danger of unfair prejudice. Ind. Evid. Rule 403. A claim

      that the evidence was improperly admitted will prevail only if the error affects a

      substantial right of the party. Ind. Evid. Rule 103(a). To determine whether

      an appellant’s substantial rights were affected we assess the “probable impact of

      that evidence upon the jury.” Corbett, 764 N.E.2d at 628.


[8]   Scoggins asserts that because the fact that Murray suffered a serious injury was

      not at issue, the four photographs were inadmissible because they were not

      relevant. We disagree. Relevant evidence is that which “has any tendency to

      make a fact more or less probable than it would be without the evidence and the

      fact is of consequence determining the action.” Ind. Evid. R. 401. Even

      Court of Appeals of Indiana | Memorandum Decision 45A03-1608-CR-1902 | March 7, 2017   Page 5 of 10
      though Scoggins did not contest the severity of Murray’s injuries, the State still

      bore the burden to prove the elements of the aggravated battery charge beyond

      a reasonable doubt. See Ind. Code § 35-42-2-1.5 (defining crime as knowingly

      or intentionally inflicting injury that causes protracted loss or impairment of

      function of bodily member or organ). In addition, the nature of Murray’s

      injuries was relevant to refute Scoggins’s claim of self-defense. He claimed that

      she fell backwards with the chair in her hands. The photographs showing the

      severity of her injuries were relevant to show that an accident could not have

      caused her injuries. The photographs were not all the same; two showed

      Murray’s entire face at different angles and two were close-ups of her eye and

      nose. Thus, not only were they relevant, we reject Scoggins’s contention that

      they were cumulative.


[9]   Scoggins also contends that even if the photographs were relevant, their

      probative value was substantially outweighed by unfair prejudice. See Ind. Evid.

      Rule 403 (“The court may exclude relevant evidence if its probative value is

      substantially outweighed by a danger of … unfair prejudice … or needlessly

      presenting cumulative evidence.”). In determining admissibility under

      Evidence Rule 403, our courts “have emphasized that the relevant inquiry is not

      merely whether the matter is prejudicial to the defendant’s interests, but

      whether ‘it is unfairly prejudicial.’” Baer v. State, 866 N.E.2d 752, 763 (Ind.

      2007) (quoting Steward v. State, 652 N.E.2d 490, 499 (Ind. 1995)). We are

      unpersuaded that the photographs resulted in unfair prejudice. They were

      highly probative to refute Scoggins’s self-defense claim and only two were


      Court of Appeals of Indiana | Memorandum Decision 45A03-1608-CR-1902 | March 7, 2017   Page 6 of 10
       published to the jury—exhibits 15 and 18—neither of which were the close-ups.

       We conclude that the trial court did not abuse its discretion in admitting the

       photographs.


            Section 2 – The trial court did not abuse its discretion in
                              sentencing Scoggins.
[10]   Scoggins argues that the trial court erred in sentencing him by failing to find

       certain mitigating factors. Sentencing decisions rest within the sound discretion

       of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on

       reh’g, 875 N.E.2d 218. So long as the sentence is within the statutory range, it is

       subject to review only for an abuse of discretion. Id. 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. A trial court may abuse its discretion

       during sentencing by entering a sentencing statement that omits mitigating

       factors that are clearly supported by the record. Id. at 490-91.


[11]   Scoggins asserts that the trial court abused its discretion in failing to find that

       his age and lack of criminal history were mitigating factors. He contends that at

       sixty-four years old, he has a low chance of recidivism. He also claims that he

       had no actual convictions. We observe that


               the trial court is not obligated to accept the defendant’s argument
               as to what constitutes a mitigating factor, and a trial court is not
               required to give the same weight to proffered mitigating factors as
               does a defendant. A trial court does not err in failing to find a
               mitigating factor where that claim is highly disputable in nature,

       Court of Appeals of Indiana | Memorandum Decision 45A03-1608-CR-1902 | March 7, 2017   Page 7 of 10
               weight, or significance. An allegation that a trial court abused its
               discretion by failing to identify or find a mitigating factor requires
               the defendant on appeal to establish that the mitigating evidence
               is significant and clearly supported by the record.


       Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct. App. 2012) (citations omitted),

       trans. denied. Scoggins has eleven prior arrests, including some that are related

       to the current offense: two for battery; one for domestic battery; and two for

       domestic assault. We conclude that Scoggins has failed to carry his burden to

       show that his age and lack of convictions are significant and clearly supported

       by the record. Therefore, we find no abuse of discretion.


          Section 3 – Scoggins has failed to carry his burden to show
                       that his sentence is inappropriate.
[12]   Scoggins also challenges his sentence as inappropriate. Article 7, Section 6 of

       the Indiana Constitution authorizes this Court to independently review and

       revise a sentence imposed by the trial court. Anglemyer, 868 N.E.2d at 491.

       Indiana Appellate Rule 7(B) states, “The 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.” “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.” Purvis v. State, 829 N.E.2d 572, 588 (Ind. Ct. App. 2005) (internal

       citations omitted), trans. denied. Scoggins bears the burden of persuading us that

       Court of Appeals of Indiana | Memorandum Decision 45A03-1608-CR-1902 | March 7, 2017   Page 8 of 10
       his sentence is inappropriate. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.

       App. 2007).


[13]   In considering the nature of a defendant’s offense, “the advisory sentence is the

       starting point the Legislature has selected as an appropriate sentence.”

       Anglemyer, 868 N.E.2d at 494. The advisory sentence for a level 3 felony is nine

       years, with a range of three to sixteen years. Ind. Code § 35-50-2-5. The trial

       court sentenced Scoggins to eight years. Scoggins contends that he should

       receive the minimum sentence of three years. Although we have the power to

       review and revise sentences, “[t]he principal role of appellate review should be

       to attempt to leaven the outliers, and identify some guiding principles for trial

       courts and those charged with improvement of the sentencing statutes, but not

       to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895

       N.E.2d 1219, 1225 (Ind. 2008). “Since 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), trans.

       denied. Here, Scoggins’s sentence is less than the advisory.


[14]   As for the nature of Scoggins’s offense, he began yelling at Murray without any

       provocation and punched her in the face, causing her to fall to the floor. While

       she laid on the floor, he picked up a chair and repeatedly hit her in the face with

       it. She was bruised and bleeding, but rather than calling for medical assistance,

       he yelled at her to get out. Doctors were unable to save Murray’s right eye and

       Court of Appeals of Indiana | Memorandum Decision 45A03-1608-CR-1902 | March 7, 2017   Page 9 of 10
       were forced to remove it. Nothing about the nature of the offense suggests that

       Scoggins’s sentence is inappropriate.


[15]   As for Scoggins’s character, there is also nothing so praiseworthy that persuades

       us that his sentence, already below the advisory, is inappropriate. Although he

       has no prior criminal convictions, he has eleven arrests. Five of those arrests

       involved battery, including domestic battery. They also include drug use.

       According to the presentence investigation report, Scoggins admitted that he

       has a history of drug use, but he has never sought any substance abuse

       treatment and committed the instant offense after ingesting marijuana and

       alcohol. He showed no remorse for his conduct and blamed Murray for her

       injuries. We conclude that Scoggins has failed to carry his burden to show that

       his sentence is inappropriate.


[16]   Based on the foregoing, we affirm Scoggins’s conviction and sentence.


[17]   Affirmed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1608-CR-1902 | March 7, 2017   Page 10 of 10
