MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                                Jun 20 2017, 9:03 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
James D. Crum                                            Curtis T. Hill, Jr.
Coots, Henke & Wheeler, P.C                              Attorney General of Indiana
Carmel, Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Matthew Duke Coonce,                                     June 20, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         29A02-1609-CR-2054
        v.                                               Appeal from the
                                                         Hamilton Superior Court
State of Indiana,                                        The Honorable Steven R. Nation
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         29D01-1507-F2-6625



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A02-1609-CR-2054 |June 20, 2017              Page 1 of 11
[1]   Matthew Duke Coonce appeals his six-year sentence for battery causing serious

      bodily injury,1 a Level 5 felony.


[2]   We affirm.


                                      Facts and Procedural History
      The facts relevant to the charges for which Coonce was convicted and

      sentenced2 show that on July 27, 2015, Brian Cowell, Austin Ellis, Coonce, and

      several other people were at Cowell’s parents’ home where Cowell was living at

      the time. His parents were out of town. On the evening before, Cowell and

      Coonce had taken Cowell’s parents’ car to buy drugs. While Cowell was in the

      dealer’s home, Coonce left with the car. When Cowell returned home at

      around 7:30 p.m. on the next day, July 27th, he found Coonce had returned

      with the car. Despite Coonce’s wish to remain, Cowell insisted that he leave.

      Cowell then went upstairs, while Ellis, Kyle Wiles, Coonce, and Coonce’s

      friends remained downstairs.


[3]   The facts concerning Coonce’s altercation with Ellis are significant because

      they offer the background for the altercation between Coonce and Cowell. Ellis

      went into the kitchen to reheat some leftover food, and Coonce followed him.

      Ellis and Coonce talked, and Ellis asked Coonce twice about when Coonce’s




      1
          See Ind. Code § 35-42-2-1(f)(1).
      2
        Coonce does not appeal his sentences for other convictions that were each to be served concurrent with this
      six-year sentence.

      Court of Appeals of Indiana | Memorandum Decision 29A02-1609-CR-2054 |June 20, 2017              Page 2 of 11
      ride was coming to pick him up. When Ellis finished preparing his food, he

      turned toward Coonce, and Coonce struck Ellis in the face, breaking his nose.

      Ellis was shocked and tried to ask Coonce what he was doing, but Coonce

      proceeded to hit Ellis in the face again. Ellis put up his hands to stop the blows

      from landing on his face and head, but Coonce hit him several more times in

      the face, causing injuries to Ellis’s forehead, cheek, and eye area. Ellis’s blood

      dripped on the kitchen floor, counters, stove, and appliances. Coonce stood

      between the refrigerator and the counter, blocking Ellis from leaving the

      kitchen.


[4]   Cowell heard Ellis’s screams and immediately rushed downstairs, where he

      found Ellis against the cabinets on the kitchen floor in a defensive position.

      Cowell attempted to stop Coonce by engaging him in “hand-to-hand combat.”

      Tr. v1 at 121, 188. Cowell hit Coonce in the face, and Coonce responded by

      blocking Cowell’s exit from the kitchen and hitting him repeatedly. Coonce hit

      Cowell in the face, in his ear, in his throat, and in the side of his neck in rapid

      succession. Cowell was knocked down on the kitchen floor, stunned and

      bleeding.


[5]   Meanwhile, Ellis escaped into the hallway, where he lost consciousness. When

      Ellis awoke, Coonce was telling a female whom he had brought to the house to

      tie up Ellis with large zip ties that they had brought with them. Coonce told

      Ellis, “If you move or make any sounds, I’ll cut you.” Id. at 188. The female

      then had Ellis fasten the zip ties around his own wrists and ankles. While Ellis

      was being tied up, Cowell called 911 and then dropped the phone so that

      Court of Appeals of Indiana | Memorandum Decision 29A02-1609-CR-2054 |June 20, 2017   Page 3 of 11
      emergency services could locate the house. In the family room, Cowell

      reengaged in combat with Coonce and his friends to “buy Ellis some time to get

      him free,” and thus allowed Ellis to escape for a short time before he lost

      consciousness again. Id. at 123-24, 189.


[6]   Coonce beat Cowell, inflicting multiple blows to Cowell’s head and face until

      he eventually knocked Cowell unconscious. Cowell sustained very painful

      injuries to his hand, forehead, jaw, and ear. One of the bruises lasted for

      several months after the beating. The beating caused blood to drip on the

      family room carpet and in the entryway. When Ellis regained consciousness,

      the house was quiet, so he quickly went upstairs, barricaded himself in the

      bathroom, removed the zip ties from his hands, and called 911.


[7]   When the police responded to the scene, they found the garage door of the

      house open and a large flat screen television in the middle of the garage. Inside

      the house, the officers found Wiles in the living room area holding a backpack

      that contained photography lenses and bags of jewelry, and they arrested Wiles

      immediately. The officers found Cowell on the family room floor,

      unconscious, in a fetal position, and convulsing. EMTs assisted Cowell in

      regaining consciousness. The officers then found Ellis locked in the bathroom

      and assisted him with his injuries. They recovered the bloody zip ties used on

      Ellis from the sink. Ellis and Cowell were both transported to Riverview

      Hospital for treatment of their injuries.




      Court of Appeals of Indiana | Memorandum Decision 29A02-1609-CR-2054 |June 20, 2017   Page 4 of 11
[8]   When Cowell’s parents returned home, they discovered many items missing

      including their Chevrolet Equinox, which was later found at the Hamilton

      Town Center and returned to them. It was extensively damaged, with the

      OnStar system removed, the interior of the vehicle slashed and trashed, the

      speakers damaged, and the windshield shattered. The damages to the car

      amounted to approximately $16,000. The car had a false license plate that was

      not registered to it. A package containing zip ties that were consistent with

      those used to tie up Ellis was also found inside the car.


[9]   Wiles, Ellis, and Cowell were interviewed at the police department, and Wiles

      provided the officers with Coonce’s phone number. The police telephoned

      Coonce, and he denied stealing anything from Cowell, accused the men of

      raping him, admitted that he “beat that fucker dude’s ass,” threatened that

      somebody would kill “those motherfuckers” because they are “fucking with the

      wrong person,” and said that he would come talk to the police. Tr. v1 at. 222,

      226; St. Ex. 88A. Coonce never met with the police, and Wiles later provided

      the police with specific information about Coonce’s whereabouts. The police

      set up surveillance of the semi-abandoned property where Coonce was located

      and obtained an arrest warrant for Coonce. The U.S. Marshal Service had to

      extricate Coonce from that property. Coonce was arrested and interviewed, at

      which time he again claimed he was “sexually molested,” admitted beating

      Cowell, and claimed he never took anything from the house. Tr. v2 at 7; St. Ex.

      89A.




      Court of Appeals of Indiana | Memorandum Decision 29A02-1609-CR-2054 |June 20, 2017   Page 5 of 11
[10]   Coonce was arrested and charged on July 31 with aggravated battery, a Level 3

       felony; battery, a Level 5 felony; criminal confinement, a Level 3 felony;

       battery, a Class A misdemeanor; criminal confinement, a Level 5 felony; and

       auto theft, a Level 6 felony. After a jury trial, Coonce was found guilty of Level

       5 felony battery, Class A misdemeanor battery, Level 6 felony criminal

       confinement as a lesser included offense of Level 5 felony criminal

       confinement, and Level 6 felony auto theft.


[11]   Coonce was sentenced to concurrent terms of six years for the Level 5 felony

       battery, one year for the Class A misdemeanor battery, two and one-half years

       for the Level 6 felony criminal confinement, and two and one-half years for the

       Level 6 felony auto theft, all to be served concurrently, resulting in a total

       sentence of six years, to run consecutive to a sentence in Marion County.

       Coonce appeals only the six-year sentence for Level 5 felony battery on Cowell.


                                      Discussion and Decision
[12]   Sentencing decisions rest within the sound discretion of the trial court and are

       reviewed on appeal only for an abuse of discretion. Guzman v. State, 985

       N.E.2d 1125, 1131 (Ind. Ct. App. 2013). “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.


[13]   When imposing a sentence in a felony case, the trial court must provide a

       reasonably detailed sentencing statement explaining its reason for imposing the

       Court of Appeals of Indiana | Memorandum Decision 29A02-1609-CR-2054 |June 20, 2017   Page 6 of 11
       sentence. Id. The defendant bears the burden of persuading the appellate court

       that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

       2006). Under Indiana Appellate Rule 7(B), this 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. Id. at 1079-80. On appeal, we exercise

       deference to a trial court’s sentencing decision, as required by Appellate Rule

       7(B) and because we recognize the unique perspective a trial court has when

       making decisions. Stewart v. State, 866 N.E.2d 858, 865-66 (Ind. Ct. App.

       2007).


[14]   In sentencing Coonce, the trial court identified the following aggravating

       circumstances: (1) Coonce’s lack of truthfulness with his probation officer; (2)

       Coonce’s behavior while incarcerated; (3) Coonce’s high risk for committing

       further felonies; (4) Coonce’s criminal history; and (5) Coonce’s probation

       violations. Tr. v3 at 143. Coonce argues that the trial court erred in sentencing

       him to the maximum because the victim was partly culpable for the actions that

       led to the charges because he entered into the fight between Coonce and Ellis.

       Although Coonce argues that Cowell reported that his only lasting injury was a

       bruise that lasted for months, the evidence shows that Cowell suffered

       lacerations to his ear, was unconscious, and suffered a seizure after the beating.


[15]   When considering the nature of the offense, the advisory sentence, here three

       years (with a range of one to six years), is the starting point to determine the

       appropriateness of a sentence. See Johnson v. State, 986 N.E.2d 852, 856 (Ind.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1609-CR-2054 |June 20, 2017   Page 7 of 11
       Ct. App. 2013) (citing Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007),

       clarified on reh’g, 875 N.E.2d 218 (2007)). Coonce argues that even though his

       criminal history is rather lengthy, he is not the worst Level 5 felony offender.

       Because he is not the worst offender, and because the nature of the offense was

       not the worst, he argues, his fully executed, maximum term, sentence should be

       revised.


[16]   Even a minor criminal record reflects poorly on a defendant’s character, and in

       this case, it is evident that Coonce has a significant criminal history. See

       Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). Coonce’s

       criminal history consists of approximately twenty-seven arrests, five prior felony

       convictions and twenty-two prior misdemeanor convictions, including felony

       theft, criminal conversion, felony auto theft, intimidation, domestic battery, and

       arson. He has previously been placed on probation approximately fifteen times

       and has had that probation revoked numerous times. After committing the

       instant offense in Hamilton County, Coonce committed new felony offenses in

       Allen County and Marion County, and had two active warrants out for his

       arrest. In addition, he had several disciplinary incidents for criminal activity

       while at the Hamilton County Jail and was placed in a padded cell due to his

       behavior as recently as July 2016.


[17]   In addition to his prior convictions, Coonce admitted to being a drug dealer and

       to daily alcohol use, daily methamphetamine use, daily marijuana use, crack

       cocaine use, powder cocaine use, and heroin use. He also admitted that he

       never sought substance abuse treatment in the past because he never felt that he

       Court of Appeals of Indiana | Memorandum Decision 29A02-1609-CR-2054 |June 20, 2017   Page 8 of 11
needed it. In his sentencing interview, he said that he was unemployed and

receiving disability benefits due to the “mental disabilities” of ADHD and

PTSD. Appellant’s App. v3 Conf. at 13-14. Furthermore, Coonce expressed

little remorse for his crimes, which also reflects negatively on his character.

With respect to the instant offenses, Coonce specifically stated, “play with fire

you get burned” and that Cowell was lucky that Coonce did not kill him. Id. at

14, 16; St. Ex. 88A. Coonce lied to the probation officer completing his

Presentence Investigation Report about his criminal history. He also admitted

that he “likes doing things that are risky and could get him in trouble” and that

he “gets an adrenaline dump” from committing crimes. Id. at 15. Nothing

before us reveals anything in Coonce’s character that would support revision to

a lesser sentence. Furthermore, Coonce was sentenced to half of the 12-year

maximum sentence he faced if he had received fully-consecutive sentences. See

Ind. Code §§ 35-50-2-6, 35-50-2-7, 35-50-3-2. His aggregate six-year-sentence is

not inappropriate in light of the nature of his offense and his character. Coonce

also challenges the maximum sentences arguing that unconsciousness cannot be

used as an aggravator because Cowell’s unconscious state served to elevate this

battery from a Class A misdemeanor, or Level 6 Felony, to the Level 5 felony.

Ind. Code § 35-42-2-1(g)(1). Ind. Code § 35-31.5-2-292(2), defines “serious

bodily injury” to include a bodily injury that causes unconsciousness. Because

the sentencing judge did not cite the seriousness of the injuries or the fact that

Cowell was knocked unconscious, they are not relevant to our review of his

sentence.


Court of Appeals of Indiana | Memorandum Decision 29A02-1609-CR-2054 |June 20, 2017   Page 9 of 11
[18]   Coonce also challenges the imposition of the maximum term for a Level 5

       felony where Cowell admitted that he physically confronted Coonce twice. If

       we considered the culpability, severity and damage, as set out in Keller v State,

       987 N.E.2d 1099, 1122 (Ind. Ct. App. 2013), Coonce argues that we must

       consider the mitigating factors listed in Indiana Code § 35-38-1-7.1(b).

       Consideration (3) under the statute is whether the victim of the crime induced

       or facilitated the offense, and (5) is whether the person acted under strong

       provocation. Coonce acknowledges that these factors were not applicable to

       the other counts, but that the evidence points unmistakably to the fact that

       Cowell instigated the confrontation between him and Coonce by throwing

       himself into the mix and striking Coonce first. Furthermore, Coonce argues,

       not only did Cowell do this upon initially throwing himself into the fray, but

       after calling 911, he re-engaged Coonce by physically assaulting him. Cowell

       concedes that provocation is not a recognized defense in this setting but argues

       that the legislature certainly intended for it to be a consideration for sentencing

       purposes. We are not persuaded by Coonce’s argument. Had Cowell not

       intervened in the fight between Coonce and Ellis, we can only speculate as to

       what would have happened. Furthermore, Ellis was a guest in Cowell’s home;

       Coonce had been told to leave.


[19]   Based on the facts of this case and Coonce’s criminal history, his six-year-

       sentence for Level 5 felony battery on Cowell is not inappropriate in light of the

       nature of the offense and his character.


[20]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1609-CR-2054 |June 20, 2017   Page 10 of 11
[21]   Mathias, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1609-CR-2054 |June 20, 2017   Page 11 of 11
