MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                           FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                              Apr 26 2019, 9:07 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Andrew Bernlohr                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Matthew B. MacKenzie
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jimmie Austin, III,                                       April 26, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2480
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Marshelle Dawkins
Appellee-Plaintiff.                                       Broadwell, Magistrate
                                                          Trial Court Cause No.
                                                          49G17-1806-CM-21138



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2480 | April 26, 2019                 Page 1 of 6
[1]   Jimmie Austin, III, appeals his sentence for battery resulting in bodily injury as

      a class A misdemeanor. He raises one issue which we revise and restate as

      whether his sentence is inappropriate in light of the nature of the offense and his

      character. We affirm.


                                      Facts and Procedural History

[2]   On June 29, 2018, Eric Dodson was in custody in a holding cell in Marion

      County and walked to the bathroom. While Dodson was in the process of

      defecating, Austin struck Dodson from the side and Dodson was “just

      blindsided.” Transcript Volume II at 82. Dodson did not know Austin

      personally, had no interaction with Austin that night, and never said anything

      to Austin prior to being struck. Dodson suffered a cut on his ear. Marion

      County Sheriff’s Deputy Brandon Wilcox responded to the fight and observed

      Dodson standing “with his hands like this, and blood – a lot of blood, dripping

      from his face all over the floor.” Id. at 99.


[3]   On June 29, 2018, the State charged Austin with battery resulting in bodily

      injury as a class A misdemeanor. On September 13, 2018, the court held a jury

      trial. Dodson testified to the details of the attack. Deputy Wilcox testified that

      he had been a deputy with the Sheriff’s Office for about four years and, when

      asked how often he sees fights in the jail, he answered: “I would say once a

      shift.” Id. at 95. The prosecutor asked Deputy Wilcox: “And in your four (4)

      years at the Marion County Sheriff’s Office, how severe was this fight,

      compared to the others that you’ve seen.” Id. at 103. Deputy Wilcox

      answered: “Uh, this one (1) takes – it’s pretty high . . . it’s the worst one (1) that
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2480 | April 26, 2019   Page 2 of 6
      I’ve seen.” Id. On cross-examination, Deputy Wilcox indicated that the

      capacity of the room where the fight took place was now around forty people

      and that on the day of the incident the cell would have been over capacity

      according to today’s standards.


[4]   Austin testified that the holding cell was “kind of crowded,” that he and

      another individual “had some words,” that Dodson went to that individual and

      the individual took off a shoe, that Dodson walked back to the front of the cell

      with a shirt that he did not have initially, and that he became scared and

      thought Dodson had a weapon. Id. at 112. When asked why he punched

      Dodson more than once, Austin answered: “I mean, like I said, my intentions –

      I was scared. So, my intentions was to extinguish the problem, at least to put

      him down until somebody came or to defend myself to the point where

      somebody did show up.” Id. at 116-117. On cross examination, the prosecutor

      stated: “So, now, you have hit him multiple times. He’s on the ground. He is

      bleeding. He has soiled his pants. And you continue to hit him, right?” Id. at

      118. Austin answered: “Yes.” Id. The jury found Austin guilty as charged.


[5]   The court observed that Austin had a “significant criminal history” and that the

      evidence showed a “vicious attack.” Id. at 142. In describing the offense, the

      court stated: “It’s completely and utterly unjustified, and that’s even taking Mr.

      Austin’s testimony as completely, as completely ‘true’ in this matter.” Id. at

      143. The court found that there were no “mitigating circumstances in this

      matter whatsoever.” Id. Austin was sentenced to 340 days.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2480 | April 26, 2019   Page 3 of 6
                                                      Discussion

[6]   The issue is whether Austin’s sentence is inappropriate in light of the nature of

      the offense and the character of the offender. Austin contends that the room in

      which the fight took place contained people over capacity for the space and,

      while such a circumstance does not justify his actions or form a defense, it

      “must be considered in determining an appropriate sentence.” Appellant’s

      Brief at 7. He also asserts that he was fully compliant with law enforcement

      after the incident concluded. He argues that this is his first conviction involving

      physical violence and that his criminal history is largely related to drugs and

      theft. 1 The State argues that Austin’s sentence is not inappropriate in light of

      his criminal history and the completely unjustified attack.


[7]   Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by

      statute if, after due consideration of the trial court’s decision, [we find] that the

      sentence is inappropriate in light of the nature of the offense and the character

      of the offender.” Under this rule, the burden is on the defendant to persuade




      1
        To the extent Austin suggests the trial court abused its discretion when it “improperly assigned significant
      weight to the criminal history,” Appellant’s Brief at 7, we note that the relative weight or value assignable to
      reasons properly found, or those which should have been found, is not subject to review for abuse of
      discretion. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. Moreover,
      to the extent Austin suggests that the trial court abused its discretion in sentencing him, we need not address
      this issue because we find that his sentence is not inappropriate. See Chappell v. State, 966 N.E.2d 124, 134
      n.10 (Ind. Ct. App. 2012) (noting that any error in failing to consider the defendant’s guilty plea as a
      mitigating factor is harmless if the sentence is not inappropriate) (citing Windhorst v. State, 868 N.E.2d 504,
      507 (Ind. 2007) (holding that, in the absence of a proper sentencing order, Indiana appellate courts may either
      remand for resentencing or exercise their authority to review the sentence pursuant to Ind. Appellate Rule
      7(B)), reh’g denied; Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007) (noting that, “even if the trial
      court is found to have abused its discretion in the process it used to sentence the defendant, the error is
      harmless if the sentence imposed was not inappropriate”), trans. denied), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2480 | April 26, 2019                      Page 4 of 6
       the appellate court that his or her sentence is inappropriate. Childress v. State,

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


[8]    Ind. Code § 35-50-3-2 provides that a person who commits a class A

       misdemeanor shall be imprisoned for a fixed term of not more than one year.


[9]    Our review of the nature of the offense reveals that while Dodson was in the

       process of defecating, Austin struck him from the side, and Dodson was “just

       blindsided.” Transcript Volume II at 82. Dodson did not know Austin

       personally, had no interaction with Austin that night, and never said anything

       to Austin prior to being struck. Austin struck Dodson multiple times and

       continued to hit him even after he was on the ground resulting in Dodson’s

       blood dripping from his face and a cut to his ear. Deputy Wilcox testified that

       the fight was one of the worst he had seen in his four years at the Marion

       County Sheriff’s Office. The trial court described the attack as vicious and

       completely and utterly unjustified.


[10]   Our review of the character of the offender reveals that Austin’s criminal

       history includes convictions for intimidation as a level 6 felony in 2016;

       criminal trespass as a class D felony in 2006; criminal trespass as a class D

       felony, two counts of resisting law enforcement as class A misdemeanors,

       dealing in a substance represented to be a controlled substance as a class D

       felony, and criminal trespass as a class A misdemeanor in 2005; resisting law

       enforcement as a class D felony in 2004; residential entry as a class D felony

       and resisting law enforcement as a class A misdemeanor in 2003; two counts of


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2480 | April 26, 2019   Page 5 of 6
       resisting law enforcement as class A misdemeanors, two counts of auto theft as

       class D felonies, and resisting law enforcement as a class D felony in 2002; and

       possession of hash oil as a class A misdemeanor in 2001. He was also on

       probation at the time of the offense.


[11]   After due consideration, we conclude that Austin has not sustained his burden

       of establishing that his sentence of 340 days is inappropriate in light of the

       nature of the offense and his character.


[12]   For the foregoing reasons, we affirm Austin’s sentence.


[13]   Affirmed.


       May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2480 | April 26, 2019   Page 6 of 6
