Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                   Aug 21 2014, 10:03 am
any 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:

SEAN M. ROW                                    GREGORY F. ZOELLER
GALYEN & ROW LAW OFFICE                        Attorney General of Indiana
New Castle, Indiana
                                               MONIKA PREKOPA TALBOT
                                               Deputy Attorney General
                                               Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

KURNIE NICKSON,                                )
                                               )
       Appellant-Defendant,                    )
                                               )
              vs.                              )       No. 48A02-1307-CR-658
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Plaintiff.                     )


                    APPEAL FROM THE MADISON CIRCUIT COURT
                       The Honorable Thomas Newman, Jr., Judge
                            Cause No. 48C03-1212-FC-2296



                                     August 21, 2014

            MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge
                                Case Summary and Issues

       Following a jury trial, Kurnie Nickson was convicted of two counts of battery, one

as a Class C felony for being committed by means of a deadly weapon, and one as a

Class A misdemeanor for resulting in serious bodily injury. The trial court ordered that

Nickson serve an aggregate sentence of eight years at the Indiana Department of

Correction. Nickson now appeals his conviction, questioning whether the trial court

abused its discretion in the admission of certain evidence, and also appeals his sentence,

contending it is inappropriate in light of the nature of his offenses and of his character.

Concluding the trial court did not abuse its discretion in the admission of evidence but

that Nickson’s sentence is inappropriate, we affirm in part, reverse in part and remand.

                              Facts and Procedural History

       Nickson and Misty Nickson were married for six years and had two children

together. By December 2012, they were divorced, and Misty was living in Anderson

with the couples’ children and her fiancé, Louis Edward Townsend. Nickson lived in

Indianapolis. In the early afternoon of December 8, 2012, Nickson texted Misty to ask a

banking-related question.    Misty responded to the initial text, but because she was

driving, handed her phone to Townsend to respond to later texts. The conversation

between the two men turned contentious, profane, and threatening. Later that evening,

Misty resumed texting with Nickson to try to calm the situation, but at approximately

8:00 p.m., Nickson texted that he was coming to Anderson. Misty and the children were

running an errand at that time and Townsend was out picking up his cousin. When Misty

and the children returned home around 9:00 p.m., Nickson was there with two friends

                                             2
who he had brought with him because he thought there might be a fight. Misty asked him

to leave, but he refused. When Townsend arrived a short time later with his cousin, he

too asked Nickson to leave and the two exchanged words. Nickson took a baseball bat

from his car and began beating Townsend with it. Nickson continued to hit Townsend

after he fell to the ground. When Misty tried to cover and protect Townsend’s head with

her body, Nickson hit her with the bat. Eventually, Townsend was able to grab the bat

away from Nickson and Nickson fled from the scene. Townsend’s cousin picked up the

bat and hit Nickson’s car to try to stop him from leaving but was unsuccessful.

Townsend was taken to the local hospital and ultimately transported by helicopter to St.

Vincent Hospital in Indianapolis due to the severity of his injuries, including a head

injury and multiple fractures.    Officers were unable to recover the bat used in the

incident.

       The State charged Nickson with battery against Townsend as a Class C felony for

using a deadly weapon and battery against Misty as a Class A misdemeanor for causing

bodily injury.   At Nickson’s jury trial, the trial court admitted into evidence over

Nickson’s objection pictures of Misty’s phone showing the text messages with Nickson

from that day as well as a transcript of the texts. Misty testified that she had deleted one

of the texts Townsend sent Nickson from her phone, but stated the deleted message was

not threatening, it just told Nickson he could come to Anderson and talk. The trial court

also admitted into evidence over Nickson’s objection a baseball bat purported to be

similar to the one Nickson used in the attack. Nickson testified that he did not bring a

baseball bat to Anderson with him; rather, Townsend’s cousin had the baseball bat and

                                             3
used it to bust Nickson’s car windows at the start of the altercation. Nickson heard one of

his acquaintances say, “[h]e got a gun,” transcript at 417, saw Townsend walking toward

him with a gun, picked up the baseball bat, and struck Townsend with it. No gun was

recovered from the scene, and Townsend did not own and was not known to carry a gun.

The jury found Nickson guilty as charged. Nickson was sentenced to a term of eight

years executed for the Class C felony conviction and a concurrent term of one year for

the Class A misdemeanor conviction. Nickson now appeals his convictions and sentence.

                                  Discussion and Decision

                                 I. Admission of Evidence

       Nickson first contends the trial court erred in admitting into evidence the text

messages and the baseball bat.

                                  A. Standard of Review

       A trial court has broad discretion in ruling on the admissibility of evidence.

Hoglund v. State, 962 N.E.2d 1230, 1237 (Ind. 2012). We will disturb the trial court’s

ruling only for an abuse of discretion. Id. An abuse of discretion is shown when the trial

court’s ruling is clearly against the facts and circumstances before it. Id.

       Errors in the admission of evidence are generally disregarded unless they affect a

party’s substantial rights. Id. at 1238. To determine the effect of an evidentiary ruling on

a defendant’s substantial rights, we look at the probable impact on the fact finder. Id. If

the conviction was supported by substantial independent evidence of guilt and we are

satisfied there is no substantial likelihood the challenged evidence contributed to the

conviction, the erroneous admission is harmless error. Id.

                                              4
                                    B. Text Messages

       Nickson alleges the trial court abused its discretion in admitting the pictures of

Misty’s phone (exhibit 33) and the transcript of the text messages (exhibit 4) they

exchanged before the incident over his objection that the exhibits were incomplete

because Misty testified she had deleted one of the texts.

       Indiana Evidence Rule 106 embodies the “completeness doctrine”:

       When a writing or recorded statement or part thereof is introduced by a
       party, an adverse party may require at that time the introduction of any
       other part or any other writing or recorded statement which in fairness
       ought to be considered contemporaneously with it.

(2012.) The common law doctrine of completeness applies not only to writings but oral

conversations as well. Lewis v. State, 754 N.E.2d 603, 606-07 (Ind. Ct. App. 2001),

trans. denied; see also DesJardins v. State, 759 N.E.2d 1036, 1038 (Ind. 2001) (“We

conclude that any mode of conveying information . . . falls within the scope of Indiana

Rule of Evidence 106 and the doctrine of completeness . . . .”). In either iteration, the

doctrine is designed to “avoid misleading impressions caused by taking a statement out of

its proper context or otherwise conveying a distorted picture by the introduction of only

selective parts . . . .” Barnett v. State, 916 N.E.2d 280, 286 (Ind. Ct. App. 2009), trans.

denied. When one party seeks to admit a portion of a statement into evidence, the

opposing party can place the remainder of the statement into evidence. Donaldson v.

State, 904 N.E.2d 294, 300-01 (Ind. Ct. App. 2009).

       Whether the text messages are a “writing or recorded statement” per the evidence

rule or a memorialization of a conversation per the common law rule, the doctrine of


                                             5
completeness does not compel their exclusion. The doctrine is intended to allow the

introduction of additional material to place incomplete, misleading evidence in context,

not to exclude the original evidence. See In re Paternity of B.B., 1 N.E.3d 151, 158-59

(Ind. Ct. App. 2013) (noting doctrine of completeness did not compel exclusion of entire

text message exchange which Father claimed was incomplete). As a party to the text

messages, Nickson had access to the texts just as the State did, and could have obtained a

copy of the entire text exchange. He was at liberty to admit the deleted text if he thought

it necessary to promote his defense. Moreover, Misty testified to the content of the

deleted text, and both Townsend and Nickson testified to the tenor and content of the text

conversation, so the texts were placed in context for the jury. For these reasons, we

cannot say the trial court abused its discretion when it admitted State’s exhibits 33 and

34.

                                     C. Baseball Bat

       Nickson also contends the trial court abused its discretion in admitting as a

demonstrative piece of evidence a bat that was described by the State as “substantially

similar to the bat that was used to attack the victims.” Tr. at 301. He argues that the

probative value of the exhibit is outweighed by the danger of unfair prejudice.

       “Demonstrative evidence is evidence offered for purposes of illustration and

clarification.” Diaz v. State, 934 N.E.2d 1089, 1094 (Ind. 2010) (citation omitted). In

order to be admissible, “the evidence need only be sufficiently explanatory or illustrative

of relevant testimony to be of potential help to the trier of fact.” Wise v. State, 719

N.E.2d 1192, 1196 (Ind. 1999). Like all evidence, the admissibility of demonstrative

                                            6
evidence is also subject to Evidence Rule 403’s requirement of balancing the probative

value of evidence versus the danger of unfair prejudice. Dunlap v. State, 761 N.E.2d

837, 842 (Ind. 2002); see Ind. Evidence Rule 403 (“Although relevant, evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury . . . .”) (2012). Evaluating

whether an exhibit’s probative value is substantially outweighed by the danger of unfair

prejudice is a discretionary decision best left to the trial court. Helsley v. State, 809

N.E.2d 292, 296 (Ind. 2004).

       In Dunlap, the defendant was charged with murder for the shooting death of an

acquaintance. The murder weapon was never found, but the State offered into evidence

an assault rifle similar to the alleged murder weapon as a demonstrative exhibit during

the testimony of a tool marks and firearm examiner. Because the defendant claimed the

discharge of the weapon was accidental and therefore she had not knowingly killed the

victim, the court agreed with the State that the demonstrative evidence had significant

probative value for showing how such a weapon works. 761 N.E.2d at 842. And because

the trial court admonished the jury that no weapon had been found and the weapon that

would be displayed was going to be used only to demonstrate what a similar-type weapon

could look like, the danger that the exhibit could mislead the jury was low. Id.

       Most, if not all, members of Nickson’s jury were probably familiar with a baseball

bat, what it looks like, how it is used, and the damage it could cause. Therefore, the

probative value of the demonstrative exhibit was low.         However, because Nickson

testified and admitted that he hit Townsend with a baseball bat, the prejudicial effect was

                                             7
also low, even in the absence of an admonition or instruction from the trial court

regarding the demonstrative nature of the exhibit. The evidence was clear that the actual

bat used in the commission of the crime had not been found, and when using the

demonstrative exhibit during questioning, the State clearly asked if it was similar to the

bat Nickson used rather than implying it was the bat. The prejudice we are concerned

with in this setting is unfair prejudice. Williams v. State, 891 N.E.2d 621, 630 (Ind. Ct.

App. 2008). “‘Unfair prejudice’ addresses the way in which a jury is expected to respond

to the evidence.” Id. That Nickson beat Townsend and Misty with a baseball bat is not

disputed. The central question for the jury was whether Nickson wielded the baseball bat

because he believed Townsend had a gun or whether he wielded the baseball bat against

an unarmed man. The admission of a similar baseball bat was not likely to persuade the

jury one way or the other with respect to Nickson’s guilt. Therefore, any prejudicial

effect from its admission did not substantially outweigh its probative value and the trial

court did not abuse its discretion in admitting the exhibit. See Berry v. State, 715 N.E.2d

864, 867 (Ind. 1999) (holding probative value of shotgun introduced as a demonstrative

exhibit was low because defendant admitted owning a similar shotgun and the offense

was committed with a shotgun, but the prejudicial effect was also low because trial court

instructed jury that exhibit was to be considered only as a demonstrative exhibit, so the

danger of prejudice did not substantially outweigh the exhibit’s probative value).




                                             8
                                        II. Inappropriate Sentence1

         Nickson also contends his eight-year sentence is inappropriate in light of the

nature of his offenses and his character.

                                           A. Standard of Review

         This court has authority to revise a sentence “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). In assessing the

nature of the offense and character of the offender, we may look to any factors appearing

in the record. Stetler v. State, 972 N.E.2d 404, 408 (Ind. Ct. App. 2012), trans. denied.

The burden is on the defendant to persuade us that his sentence is inappropriate.

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

                                           B. Nickson’s Sentence

         In considering the nature of the offense, the advisory sentence is the starting point

the legislature has selected as appropriate for the crime committed. Fuller v. State, 9

N.E.3d 653, 657 (Ind. 2014). The character of the offender portion of sentence review

involves consideration of the aggravating and mitigating circumstances and other general

considerations. Clara v. State, 899 N.E.2d 733, 736 (Ind. Ct. App. 2009). We are not
         1
            Whether the trial court abused its discretion in imposing the sentence it did and whether in our judgment,
the sentence imposed was inappropriate are two separate issues. See King v. State, 894 N.E.2d 265, 267 (Ind. Ct.
App. 2008). Nickson conflates the two arguments, stating his issue as whether his sentence is inappropriate and
asking that this court revise it, but also referencing the trial court’s obligation to enter a sentencing statement
identifying the trial court’s reasons for imposing a particular sentence. See Appellant’s Amended Brief at 11 (citing
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007)). With regard to the latter, we note only that the trial court’s
statements at the sentencing hearing and its original sentencing order—amended on remand at the State’s request—
both identify the mitigating and aggravating circumstances on which the trial court relied in imposing sentence. See
Gleason v. State, 965 N.E.2d 702, 710 (Ind. Ct. App. 2012) (“When reviewing the sufficiency of the sentencing
statement, we examine both the trial court’s written and oral statements.”). Because we are not required to rely only
on the circumstances cited by the trial court in conducting an inappropriateness review, we do not address whether
the trial court abused its discretion with regard to its amended sentencing order.

                                                          9
limited to the aggravating and mitigating circumstances found by the trial court in

analyzing a Rule 7(B) claim. Fuller, 9 N.E.3d at 657.

        Nickson was sentenced to eight years for his Class C felony conviction, to be

served concurrently with one year for the Class A misdemeanor conviction. 2 “A person

who commits a Class C felony shall be imprisoned for a fixed term of between two (2)

and eight (8) years, with the advisory sentence being four (4) years.” Ind. Code § 35-50-

2-6 (2013). Thus his sentence was the maximum sentence he could be ordered to serve in

the absence of consecutive sentences. In committing these batteries, Nickson did not

suddenly encounter a situation that escalated out of control. Rather, the conversations

between Nickson and the victims occurred over approximately six hours, and Nickson

traveled from Indianapolis to Anderson to confront them, even warning them that he was

on his way. He had plenty of time to reflect upon his actions and choose a different

course. However, it is of some concern that it was not until Townsend took over the text

messaging that the tone of the conversation began to turn ugly. The altercation took

place in front of Misty’s and Nickson’s children, which was known to Nickson. The

injury Nickson caused to Townsend in particular was severe, but that was in part

accounted for when the State elevated the basic battery charge to a Class C felony for use

of a deadly weapon. On the whole, the nature of the offense is not appreciably greater

than that contemplated by the legislature in setting the advisory sentence for Class C

felony battery.

        2
           “Ultimately the length of the aggregate sentence and how it is to be served are the issues that matter.”
Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). “[A]ppellate review should focus on the forest—the
aggregate sentence—rather than the trees—consecutive or concurrent, number of counts, or length of sentence on
any individual count.” Id. at 1225. Accordingly, we focus on the eight-year total sentence.

                                                        10
       As for Nickson’s character, he has no prior juvenile adjudications or adult

convictions. He has, however, been arrested twice before for battery offenses. See

Johnson v. State, 837 N.E.2d 209, 218 (Ind. Ct. App. 2005) (“When evaluating the

character of an offender, a . . . court may consider the offender’s arrest record in addition

to actual convictions.”), trans. denied. In early 2004, he was arrested on three counts of

battery and one count of interference with reporting a crime, but all charges were

dismissed. In late 2004, he was arrested for domestic battery against Misty, but the

charge was dismissed upon proof that he had completed an anger control program.

Although these charges are distant in time from the instant offense, they are extremely

similar to the instant offense in nature and gravity, see Richardson v. State, 906 N.E.2d

241, 248 (Ind. Ct. App. 2009) (noting the significance of criminal history depends on the

number and gravity of prior offenses and their proximity or distance and similarity or

dissimilarity to the present offense), and they confirm that Nickson has a difficult time

controlling his temper.     The pre-sentence investigation report shows that Nickson

participated in college athletics, earned both an associate and a bachelor’s degree, and has

been regularly employed. Prior to incarceration, he was current on his child support

obligation and was active in his children’s lives. The maximum possible sentences are

generally most appropriate for the worst offenders, Reid v. State, 876 N.E.2d 1114, 1116

(Ind. 2007), and although Nickson’s actions in December 2012 were impetuous,

unnecessary, and demonstrate a lack of judgment, his character overall does not indicate

he is among the worst offenders.



                                             11
      After giving due consideration to the trial court’s sentencing decision, and

considering the nature of Nickson’s offense and his character, we agree with the trial

court that a sentence greater than the advisory is warranted. At the same time, we are

unable to conclude that Nickson is among the worst offenders. We therefore exercise our

constitutional authority to revise Nickson’s eight-year executed sentence to six years

executed with two years suspended to probation.

                                      Conclusion

      The trial court did not abuse its discretion in admitting the text messages or

baseball bat into evidence over Nickson’s objection. Nickson has met his burden of

persuading us that his eight-year executed sentence is inappropriate, and we remand to

the trial court to revise his sentence to six years executed with two years suspended to

probation.

      Affirmed in part, reversed in part, and remanded.

RILEY, J., concurs.

BRADFORD, J., concurs in part and dissents in part with opinion.




                                          12
                                  IN THE
                        COURT OF APPEALS OF INDIANA


KURNIE N. NICKSON,                               )
                                                 )
       Appellant-Defendant,                      )
                                                 )
       vs.                                       )    No. 48A02-1307-CR-658
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )



BRADFORD, Judge, concurring in part and dissenting in part

       While I agree with the majority on the disposition of the evidentiary questions, I

write separately because I believe that Nickson’s character and the nature of his crimes

fully justify his eight-year sentence. The nature of Nickson’s offenses was fairly heinous,

and the State proved far more than necessary to support his convictions. Angered by a

series of telephone text messages, Nickson drove from Indianapolis to Anderson to

confront Townsend. By Nickson’s own admission, he had approximately two hours to

rethink his course of action but did not. Once locating Townsend, Nickson immediately

pulled out a baseball bat and clubbed Townsend in the head, fracturing his skull and

causing subarachnoid hemorrhaging. Nickson continued the beating after Townsend fell

to the ground. All told, Nickson admitted to striking Townsend up to twenty times with


                                            13
the bat, when one blow would have supported his Class C felony battery conviction. As

the prosecutor noted during final argument, Nickson’s conduct would easily have

supported a charge of—and conviction for—attempted murder, which would have carried

a minimum non-suspendable sentence of twenty years.            When Misty attempted to

intervene on Townsend’s behalf, Nickson beat her on the back, face, and hand, the last of

which he broke. Moreover, Nickson and Misty’s two young children, whose presence

was known to Nickson, watched as their biological father savagely beat their mother and

surrogate father with a baseball bat. Townsend’s injuries were considered severe enough

that the first doctor to see him in Anderson had him airlifted to Indianapolis so that he

could be seen by a trauma surgeon and a neurosurgeon. The heinous nature of Nickson’s

offenses alone justifies his eight-year sentence.

       Despite his lack of criminal convictions, Nickson’s character also supports his

sentence. When one considers that Nickson’s response to perceived insults delivered via

text message was to beat Townsend with a baseball bat, despite having two hours to think

better of it, the obvious conclusion is that Nickson has serious and unaddressed anger-

control issues. Moreover, Nickson’s criminal history is not entirely spotless, as he has

been arrested three times previously, including twice for battery offenses. One of the

prior arrests stemmed from an incident with Misty, and charges were dropped when

Nickson completed an anger management class, which apparently did not take. In light

of Nickson’s character and the nature of his offenses, I would conclude that his eight-year

sentence is appropriate. Consequently, I concur in part and respectfully dissent in part.



                                             14
