MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Apr 20 2018, 11:09 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Justin R. Wall                                           Curtis T. Hill, Jr.
Wall Legal Services                                      Attorney General of Indiana
Huntington, Indiana
                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kelly D. Ratliff,                                        April 20, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         85A05-1712-CR-2891
        v.                                               Appeal from the Wabash Circuit
                                                         Court
State of Indiana,                                        The Honorable Robert R.
Appellee-Plaintiff                                       McCallen, III, Judge
                                                         Trial Court Cause No.
                                                         85C01-1607-F5-818



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 85A05-1712-CR-2891 | April 20, 2018              Page 1 of 15
[1]   Kelly Ratliff appeals his conviction of and sentence for Level 6 Felony

      Domestic Battery.1 He argues that the trial court erred by denying his motions

      for mistrial, that there is insufficient evidence to support his conviction, that the

      trial court erred when imposing his sentence, and that his sentence is

      inappropriate in light of the nature of the offense and his character. Finding no

      error, that the evidence is sufficient, and that the sentence is not inappropriate,

      we affirm.


                                                     Facts
[2]   At some point, Ratliff and Stephanie Hood had been in a relationship and had

      two children together, including E.R. In July 2016, when E.R. was fourteen

      years old, Ratliff was in a relationship with Ashley Hopkins. On July 11, 2016,

      Hood dropped E.R. off at Hopkins’s house so that E.R. could spend time with

      Hopkins and her son. Ratliff and Hopkins had argued earlier that day and had

      temporarily broken up. While E.R. was at Hopkins’s house, he sent Ratliff

      angry text messages. Ratliff investigated and discovered that E.R. was at

      Hopkins’s house.


[3]   A little after midnight, E.R., Hopkins, and Hopkins’s son were watching

      television in Hopkins’s bedroom when Ratliff suddenly entered the room.

      Ratliff was angry, and he yelled, “You can’t play with my heart. I can’t believe

      you did this.” Tr. Vol. II p. 246-47. Hopkins’s son ran out of the room. Ratliff




      1
          Ind. Code § 35-42-2-1.3.


      Court of Appeals of Indiana | Memorandum Decision 85A05-1712-CR-2891 | April 20, 2018   Page 2 of 15
      accused Hopkins and E.R. of having an affair. Ratliff picked E.R. up by his

      hair, slapped him, punched him in the head with a closed fist, and threw him

      against the wall. Ratliff then made both E.R. and Hopkins get into the closet,

      and he kicked them. Ratliff held scissors to E.R.’s throat, told his son that he

      was going to kill him, and threatened to cut his head off. Hopkins begged

      Ratliff to stop hurting E.R. When E.R. tried to pick up his phone, Ratliff took

      it and smashed it.


[4]   Ratliff then grabbed E.R. by the back of his neck, took him to his truck, and

      drove him to Ratliff’s mother’s house. Once there, Ratliff ordered E.R. to lie

      down on the couch and yelled at him. Ratliff then told his mother to drive E.R.

      to Hood’s house. After they left, Ratliff called Hood. He was distraught and

      told her that he had hurt E.R, that he had taught E.R. a lesson, and that he was

      afraid he had killed Hopkins. During their conversation, he said he had “ripped

      them up like rag dolls,” that his son was a “little mother f****r,” that he had

      caught Hopkins and E.R. “f*****g on the bed,” and that E.R. was lucky to be

      alive. Tr. Vol. III p. 132.


[5]   On July 22, 2016, the State charged Ratliff with Level 5 felony intimidation and

      Class A misdemeanor domestic battery; the State subsequently filed a Level 6

      felony enhancement for the domestic battery charge. A jury trial took place on

      October 31 and November 1, 2017. During the trial, when asked what he was

      texting Ratliff about on the night of the offense, E.R. testified that he was angry

      with Ratliff for “hitting Ashley.” Tr. Vol. II p. 230. Ratliff objected and moved

      for a mistrial. Outside of the jury’s presence, the trial court noted that the

      Court of Appeals of Indiana | Memorandum Decision 85A05-1712-CR-2891 | April 20, 2018   Page 3 of 15
      testimony at issue did not involve conduct against E.R., the victim in this case.

      The trial court denied the motion for a mistrial, read to counsel for both parties

      the proposed jury admonition, and incorporated the attorneys’ feedback. When

      the jury returned, the trial court stated that any act allegedly committed against

      someone else could not be considered by the jury as evidence that Ratliff

      committed any of the charged crimes against E.R. The jurors all indicated that

      they understood this instruction.


[6]   Later in the trial, regarding visitation between Ratliff and E.R., Hood testified

      that “[t]here was some in the beginning after we split up and he went to jail for

      a while.” Tr. Vol. III p. 118. Ratliff again moved for a mistrial, arguing that

      the record was now replete with prejudicial references to prior bad acts. The

      trial court again denied the motion, finding that the improper testimony did not

      place Ratliff in grave peril nor was it intentionally elicited. The trial court

      admonished the jury to disregard this testimony and not to consider or mention

      it during deliberations, and told the jury that if anyone violated this instruction,

      each juror was charged with the duty to notify the trial court. The jurors all

      indicated that they could follow this instruction.


[7]   The jury found Ratliff guilty of domestic battery but not guilty of intimidation.

      The trial court found that Ratliff had a prior conviction for domestic battery and

      enhanced his conviction to a Level 6 felony. At the December 1, 2017,

      sentencing hearing, the trial court found several aggravating factors, including

      Ratliff’s extensive criminal record, his previous failed attempts at probation,



      Court of Appeals of Indiana | Memorandum Decision 85A05-1712-CR-2891 | April 20, 2018   Page 4 of 15
       and his lack of remorse. The trial court found no mitigating factors. The trial

       court imposed a sentence of two and one-half years. Ratliff now appeals.


                                    Discussion and Decision
[8]    Ratliff presents four issues on appeal, which we consolidate and restate as: 1)

       whether the trial court erred by denying his motions for mistrial, 2) whether

       there is sufficient evidence to support his conviction, and 3) whether the

       sentence should be revised.


                                     I. Motions for Mistrials
[9]    Ratliff argues that the trial court should have granted his motions for mistrial

       based on the gravity of peril he was in due to E.R.’s and Hood’s testimony.

       “[A] mistrial is an extreme remedy that is only justified when other remedial

       measures are insufficient to rectify the situation.” Mickens v. State, 742 N.E.2d

       927, 929 (Ind. 2001). We review a trial court’s decision to grant or deny a

       motion for mistrial for error “because the trial court is in the best position to

       gauge the surrounding circumstances of an event and its impact on the jury.”

       Pittman v. State, 885 N.E.2d 1246, 1255 (Ind. 2008). “A mistrial is appropriate

       only when the questioned conduct is so prejudicial and inflammatory that the

       defendant was placed in a position of grave peril to which he should not have

       been subjected.” Id. (quotations omitted). We measure the gravity of the peril

       by considering the conduct’s probable persuasive effect on the jury. Id.


[10]   Ratliff contends that his motions for mistrial should have been granted because

       of prejudicial evidence. A trial court’s admonishment to the jury is presumed to
       Court of Appeals of Indiana | Memorandum Decision 85A05-1712-CR-2891 | April 20, 2018   Page 5 of 15
       cure any error in the admission of evidence. Isom v. State, 31 N.E.3d 469, 481

       (Ind. 2015). “On appeal, we must presume that the jury obeyed the court’s

       instructions in reaching its verdict.” Id. (citation omitted).


[11]   Ratliff contends that the trial court erred by denying his motion for mistrial after

       E.R. testified that he was angry with Ratliff for “hitting Ashley.” Tr. Vol. II p.

       230. Although both parties agreed during the trial that this testimony was

       improper, the trial court determined that an admonishment was sufficient to

       cure the prejudice. The trial court admonished the jury as follows:


               . . . ladies and gentlemen, I want to instruct you as follows. The
               two charges against Mr. Kelly Ratliff are Battery and
               Intimidation. The alleged victim is [E.R.], not Ashley Hopkins.
               You are ordered and admonished that the testimony elicited by
               the State from [E.R.], as to any acts allegedly committed by Mr.
               Ratliff against someone else, are not to be considered by you as
               any evidence that the Defendant committed any of alleged acts
               against [E.R.] Does that make sense to you all? Nodding your
               head yes. All right. . . .


       Id. at 241-42. Ratliff does not explain why the trial court’s admonishment was

       not sufficient to cure the error. The admonishment was clear and unequivocal;

       it redirected the jury’s attention to the charged offenses and ordered the jurors

       to not consider during their deliberations any evidence about any interactions

       Ratliff might have had with other people. The jurors indicated that they

       understood this instruction. Although Ratliff contends that the testimony was

       prejudicial because it established to the jury that he is a bad person who beats

       his girlfriend, there is nothing in the record to overcome the presumption that

       Court of Appeals of Indiana | Memorandum Decision 85A05-1712-CR-2891 | April 20, 2018   Page 6 of 15
       the jury obeyed the trial court’s admonishment. Moreover, any prejudice

       stemming from this testimony was limited; the testimony was brief and

       provided no details about what had taken place.2


[12]   Ratliff also challenges the trial court’s denial of his motion for mistrial after

       Hood testified that Ratliff had gone “to jail for a while.” Tr. Vol. III p. 118.

       Ratliff contends that this testimony was prejudicial and inflammatory, and the

       State acknowledges that it was improper. The trial court determined that an

       admonishment was sufficient to cure any prejudice and admonished the jury as

       follows:


                I am instructing you as follows. When you were last in the
                courtroom, there was an objection made on which I needed to
                rule. . . . I have now sustained that objection, which means I
                granted it and ruled as a matter of Indiana law that the testimony
                given by Ms. Hood, that prompted the objection, was improperly
                placed before you. Therefore, you are now ordered and
                admonished to disregard entirely such testimony. It is not to be
                mentioned or considered by you in any way during the course of
                this trial, and particularly, shall not be mentioned or considered
                in your deliberations or any discussions in or outside of the jury
                room. You are each charged to bring any violation of this order



       2
         In addition, both Ratliff and the State discuss testimony by E.R. that the relationship between Ratliff and
       Hopkins was abusive in the context of a motion for mistrial. However, the record does not show that Ratliff
       moved for mistrial after that particular piece of testimony. Instead, it shows that Ratliff objected and the trial
       court called a recess and dismissed the jury. The trial court then instructed E.R. about the limits of his
       testimony. E.R stated that he understood the instructions, and counsel for both parties agreed that the trial
       court’s instruction was clear. The trial court and counsel then discussed a motion in limine for prior bad acts.
       The trial court asked whether a limiting instruction was necessary, and Ratliff’s counsel said it was not. The
       trial court then called the jury back in. We need not consider whether the trial court should have granted an
       unasked-for mistrial.



       Court of Appeals of Indiana | Memorandum Decision 85A05-1712-CR-2891 | April 20, 2018                Page 7 of 15
               to the Court’s attention through the bailiff. Everybody
               understand that okay? All right. They’re nodding their heads
               yes.


       Id. at 124-25. Again, Ratliff fails to explain why this admonishment was

       insufficient to address the improper testimony. As with the earlier

       admonishment, the trial court was clear that the jurors were not to consider the

       testimony in any way, and the jurors all indicated that they understood the trial

       court’s instruction. There is no evidence to overcome the presumption that

       they obeyed the instruction; indeed, the fact that no juror notified the bailiff of a

       violation of the instruction shows that they followed it. Moreover, the

       challenged testimony was brief in nature and included no details about the

       incarceration. An admonishment was sufficient to cure any prejudice from the

       reference. E.g., Lucio v. State, 907 N.E.2d 1008, 1011 (Ind. 2009) (affirming

       denial of mistrial where witness’s reference to defendant’s time in jail was

       fleeting, inadvertent, and only a minor part of the evidence against defendant

       and the jury was admonished).


[13]   Ratliff further argues that the totality of this evidence placed him in grave peril

       because, taken together, the testimony indicated that he is an angry person with

       a propensity for violence. But we note that the jury acquitted him of

       intimidation, the more serious of the two charges that he faced. The

       intimidation verdict shows that the jury did not infer from the testimony that

       Ratliff was an angry and violent person who was necessarily guilty of the crimes

       with which he was charged. Instead, the jury considered the evidence and


       Court of Appeals of Indiana | Memorandum Decision 85A05-1712-CR-2891 | April 20, 2018   Page 8 of 15
       found Ratliff not guilty of one offense. If the trial court’s refusal to grant a

       mistrial did not prejudice the jury’s not guilty verdict as to one charge, its

       refusal could not have prejudiced the jury’s guilty verdict as to another charge.

       Rentas v. State, 519 N.E.2d 162, 166 (Ind. Ct. App. 1988).


[14]   In sum, in each instance, the trial court was in the best position to gauge the

       surrounding circumstances and the impact of the testimony and the impact of

       the admonishments on the jury. In each instance and collectively, the trial

       court did not err by denying Ratliff’s motions for mistrial.


                               II. Sufficiency of the Evidence
[15]   Ratliff argues that there was insufficient evidence to support his conviction.

       Specifically, he argues that E.R. was the only witness who testified that Ratliff

       battered him, that E.R.’s testimony was incredibly dubious, and that his

       testimony is unsupported by circumstantial evidence. When reviewing the

       sufficiency of the evidence to support a conviction, we must consider only the

       probative evidence and reasonable inferences supporting the conviction. Drane

       v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess witness credibility

       or reweigh the evidence. Id. We consider conflicting evidence most favorably

       to the trial court’s ruling. Id. We affirm the conviction unless no reasonable

       factfinder could find the elements of the crime proven beyond a reasonable

       doubt. Id.


[16]   Appellate courts may impinge upon a jury’s function to judge the credibility of

       a witness, however, by applying the “incredible dubiosity” rule. Smith v. State,

       Court of Appeals of Indiana | Memorandum Decision 85A05-1712-CR-2891 | April 20, 2018   Page 9 of 15
       34 N.E.3d 1211, 1221 (Ind. 2015). Application of the incredible dubiosity rule

       is limited to specific circumstances because we are extremely hesitant to invade

       the province of the jury. Id. To warrant application of the incredible dubiosity

       rule, there must be: “‘1) a sole testifying witness; 2) testimony that is inherently

       contradictory, equivocal, or the result of coercion; and 3) a complete absence of

       circumstantial evidence.’” Id. (quoting Moore v. State, 27 N.E.3d 749, 756 (Ind.

       2015)).


[17]   To convict Ratliff of Level 6 felony domestic battery, the State was required to

       prove beyond a reasonable doubt that Ratliff knowingly or intentionally

       touched a family or household member in a rude, angry, or insolent manner,

       and that Ratliff had a prior unrelated conviction for domestic battery. I.C. § 35-

       42-2-1.3. Ratliff concedes that E.R. is a family or household member; he only

       challenges whether the evidence establishes that he touched E.R. in a rude,

       angry, or insolent manner.


[18]   E.R. testified that Ratliff was mad and screaming when he entered the

       bedroom; that Ratliff picked E.R. up by his hair, slapped him, punched him in

       the head, threw him against the wall, and kicked him; and that Ratliff held

       scissors to E.R.’s throat and threatened to kill him and cut off his head.

       Hopkins and Hood both testified and corroborated E.R.’s version of events.

       Ratliff’s mother and sister also testified, and while their testimony was vague, it

       was not inconsistent with E.R.’s. It is for the factfinder to decide which

       witnesses to believe or disbelieve, and if the testimony believed by the factfinder

       is enough to support the verdict, we will not disturb it. Ferrell v. State, 746

       Court of Appeals of Indiana | Memorandum Decision 85A05-1712-CR-2891 | April 20, 2018   Page 10 of 15
       N.E.2d 48, 51 (Ind. 2001). Here, the jury apparently believed the testimony of

       E.R., Hopkins, Hood, Ratliff’s mother, and Ratliff’s sister; accordingly, the

       evidence is sufficient to support a guilty verdict for domestic battery.


[19]   The incredible dubiosity rule does not apply to this case. As noted above, E.R.

       was not the sole testifying witness—Hopkins, Hood, Ratliff’s mother, and

       Ratliff’s sister all testified. Specifically, Hopkins testified that Ratliff entered the

       room upset and yelling, that he forced both of them into the closet, that he had

       scissors in his hand, that he kicked her, and that he threatened to kill both of

       them. Hopkins testified that, although her view was blocked, she was “pretty

       sure” that Ratliff hit and kicked E.R. and that she saw Ratliff “dive over” the

       bed toward E.R. while making a fist “like he was going to hit him.” Tr. Vol. III

       p. 52, 56. Hood testified that Ratliff called her that night, distraught, and told

       her that he had hurt E.R. Thus, the first factor of the incredible dubiosity rule

       has not been met because multiple witnesses offered testimony that the jury

       could have relied upon in reaching its verdict. We need not consider the

       remaining factors but note that they, likewise, are not met in this case.


[20]   In sum, the incredible dubiosity rule is inapplicable in the present case and

       cannot serve as grounds for overturning the jury’s verdict. Further, based on

       the evidence presented at trial, the jury could have found each element of

       domestic battery beyond a reasonable doubt. Accordingly, there was sufficient

       evidence to support Ratliff’s conviction.




       Court of Appeals of Indiana | Memorandum Decision 85A05-1712-CR-2891 | April 20, 2018   Page 11 of 15
                                             III. Sentencing
[21]   Regarding his sentence, Ratliff argues that the trial court erred by using an

       improper aggravator and that his sentence is inappropriate in light of the nature

       of the offense and his character.


                                      A. Aggravating Factor
[22]   Ratliff argues that the trial court erred by finding his lack of remorse as an

       aggravating factor. Specifically, he argues that any showing of remorse would

       be inconsistent with the fact that he maintained his innocence throughout the

       proceeding, and therefore a lack of remorse should not be used against him.

       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 on other

       grounds at 875 N.E.2d 218. A trial court may err in its decision if it is clearly

       against the logic and effect of the facts and circumstances before the court. Id.

       A trial court may err by finding aggravating or mitigating factors that are not

       supported by the record, by omitting factors that are clearly supported by the

       record and advanced for consideration, or by finding factors that are improper

       as a matter of law. Id. at 490-91.


[23]   A trial court does not err when it considers “as an aggravating factor the lack of

       remorse by a defendant who insists upon his innocence.” Georgopulos v. State,

       735 N.E.2d 1138, 1145 (Ind. 2000). “Rather, the lack of remorse is regarded

       only as a modest aggravator.” Id. A defendant exhibits a lack of remorse

       “when he displays disdain or recalcitrance, the equivalent of ‘I don’t care.’”

       Court of Appeals of Indiana | Memorandum Decision 85A05-1712-CR-2891 | April 20, 2018   Page 12 of 15
       Cox v. State, 780 N.E.2d 1150, 1158 (Ind. Ct. App. 2002). Here, Ratliff did

       display a lack of remorse. Regarding his behavior, he stated that he thought he

       did not break any laws and that he “was in [his] rights as a father.” Appellant’s

       Conf. App. p. 10. Ratliff testified that he yelled, intentionally broke E.R.’s

       phone, and forced E.R. to leave Hopkins’s house even though E.R.’s mother,

       who was E.R.’s custodial parent, had given him permission to be there.

       Regardless of whether he maintained his innocence, Ratliff failed to accept any

       responsibility for what transpired that night. In other words, he showed a lack

       of remorse.


[24]   The trial court considered Ratliff’s lack of remorse as a modest aggravating

       factor, stating that he has “shown no remorse, and that’s his right.” Tr. Vol. IV

       p. 18. And the weight of this factor was far outweighed by the other

       aggravating factors—Ratliff’s extensive criminal history and the past failed

       attempts to rehabilitate him through probation— that the trial court found. The

       trial court did not err by considering Ratliff’s lack of remorse as a modest

       aggravating factor.


                              B. Appropriateness of Sentence
[25]   Ratliff asserts that his sentence is inappropriate in light of the nature of the

       offense and his character pursuant to Indiana Appellate Rule 7(B). In

       considering an argument under Rule 7(B), we must “conduct [this] review with

       substantial deference and give ‘due consideration’ to the trial court’s decision—

       since the ‘principal role of [our] review is to attempt to leaven the outliers,’ and


       Court of Appeals of Indiana | Memorandum Decision 85A05-1712-CR-2891 | April 20, 2018   Page 13 of 15
       not to achieve a perceived ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d

       1274, 1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind.

       2013)) (internal citations omitted).


[26]   Ratliff was convicted of Level 6 felony domestic battery. For this conviction,

       he faced a sentence of six months to two and one-half years imprisonment, with

       an advisory term of one year. Ind. Code § 35-50-2-7(b). The trial court

       imposed a sentence of two and one-half years.


[27]   With respect to the nature of the offense, after receiving text messages from

       E.R., Ratliff intentionally sought him out. He was angry when he arrived at

       Hopkins’s house, and without any foundation, he accused his girlfriend and his

       teenage son of having an affair. Ratliff then violently attacked his son; he

       picked him up by his hair, slapped him, punched him in the head, and threw

       him against the wall. He forced E.R. into the closet and kicked him. Ratliff

       held scissors to E.R.’s throat, told E.R. that he was going to kill him, and

       threatened to cut his head off. When E.R. tried to pick up his phone, Ratliff

       smashed it. Ratliff then forced his son into his truck and drove him to Ratliff’s

       mother’s house. Afterwards, Ratliff told Hood that he had taught E.R. a

       lesson.


[28]   With respect to Ratliff’s character, Ratliff has four prior felony convictions,

       including domestic battery, possession of a controlled substance, possession of

       precursors, and conspiracy to possess precursors. He also has misdemeanor

       convictions for disorderly conduct, minor in possession of alcohol, operating


       Court of Appeals of Indiana | Memorandum Decision 85A05-1712-CR-2891 | April 20, 2018   Page 14 of 15
       while intoxicated, resisting law enforcement, possession of marijuana, battery,

       and invasion of privacy. In addition, he has four prior battery charges, one

       prior intimidation charge, and charges for possession of marijuana and public

       intoxication that were dismissed for unspecified reasons. Ratliff has violated

       probation three times. He continues to show disregard for the law—while out

       on bond in this case, he was charged with a violent offense against Hopkins.


[29]   Under these circumstances, we find that the sentence imposed by the trial court

       is not inappropriate in light of the nature of the offense and Ratliff’s character.


[30]   The judgment of the trial court is affirmed.


       Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 85A05-1712-CR-2891 | April 20, 2018   Page 15 of 15
