MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                            Aug 25 2016, 8:43 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David T. A. Mattingly                                    Gregory F. Zoeller
Mattingly Legal, LLC                                     Attorney General of Indiana
Lafayette, Indiana
                                                         Paula J. Beller
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Latroy Maxwell,                                          August 25, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1601-CR-154
        v.                                               Appeal from the Tippecanoe
                                                         Circuit Court
State of Indiana,                                        The Honorable Thomas H. Busch,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         79C01-1505-F1-2



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1601-CR-154 | August 25, 2016    Page 1 of 8
                                             Case Summary
[1]   Latroy Maxwell (“Maxwell”) appeals his conviction and sentence for Rape, as

      a Level 1 felony.1 We affirm.



                                                       Issues
[2]   Maxwell presents two issues for review:


               I.       Whether the State presented sufficient evidence of serious
                        bodily injury to elevate the offense to a Level 1 felony; and


               II.      Whether his thirty-year advisory sentence is inappropriate.


                             Facts and Procedural History                                    2




[3]   In April of 2015, N.G. lived in Lafayette with her four children. She had

      obtained a no-contact order against Maxwell, who was the father of one of the

      children.




      1
       Ind. Code § 35-42-4-1. He does not challenge his two convictions or concurrent sentences for Invasion of
      Privacy, a Class A misdemeanor. I.C. § 35-46-1-15.1.
      2
       We remind Maxwell’s counsel that the Statement of Facts in an appellate brief “shall be stated in
      accordance with the standard of review appropriate to the judgment or order being appealed.” Indiana
      Appellate Rule 46(A)(6)(b). The Statement of Facts section of the Appellant’s brief is permeated with an
      appalling lack of sensitivity. For example, the first paragraph opens with the language: “This is a consent
      Rape case.” Appellant’s Brief at 8. The trial is described as a “he-said, she-said” matter. Appellant’s Brief at
      8. In argument, despite a lack of evidence of the duration of N.G.’s unconsciousness, counsel insists that the
      period was brief and N.G.’s injuries superficial. According to counsel, “a brief period of unconsciousness
      coupled with other merely superficial injuries” do not “make the grade” for serious bodily injury.
      Appellant’s Brief at 18-19. Counsel also repeatedly suggests that the evidence of N.G.’s injuries is unworthy
      of credit, as “self-reporting.” Appellant’s Brief at 11-12.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1601-CR-154 | August 25, 2016               Page 2 of 8
[4]   On April 23, 2015, at around 10:00 p.m., N.G. answered a knock at her door to

      find Maxwell standing there holding a case of beer. He handed N.G. the beer

      and stated that he would be back, then took off down the street.


[5]   Within minutes, Maxwell returned. N.G. again opened the door, but did not

      invite Maxwell inside. Maxwell insisted that he wanted to give his child a hug

      and kiss, and he walked past N.G. into the house. After trying to awaken his

      child and interact with her, Maxwell began to express displeasure that the child

      was not very responsive. He accused N.G. of doing something to cause the

      child to react negatively to him.


[6]   N.G. told Maxwell that he could leave, but Maxwell continued to engage N.G.

      in conversation. He was alternately speaking in normal tones and in loud,

      angry tones. At one point, Maxwell “flipped his hand” across N.G.’s lip and

      expressed his desire to engage in sexual relations. (Tr. at 67.) When N.G.

      rebuffed Maxwell’s request for “moo shoo,” he motioned that she should

      perform oral sex. (Tr. at 67.) N.G. repeatedly told Maxwell no and requested

      that he leave. Instead, Maxwell tried to interrogate N.G. about whom she was

      trying to be faithful to. He stated that he was “tired of [N.G.] treating him like

      one of those other punk ass n-----s on the street” and began to push her into the

      bedroom. (Tr. at 69.)


[7]   Maxwell and N.G. struggled on the bed. N.G. attempted to get up, but

      Maxwell repeatedly pushed her down. He was attempting to remove N.G.’s

      pants and she was “holding onto them so he couldn’t pull them down.” (Tr. at


      Court of Appeals of Indiana | Memorandum Decision 79A02-1601-CR-154 | August 25, 2016   Page 3 of 8
       74.) N.G. dug her nails into Maxwell’s neck and bit him on his chest. Maxwell

       then put his arm around N.G. and choked her into unconsciousness. When

       N.G. came to, she was aware that her pants were off.


[8]    Maxwell used one arm to pin N.G. down and the other arm to pry her knees

       apart. Maxwell raped N.G. and asked if she “was going to call the police on

       him.” (Tr. at 81.) After N.G. assured Maxwell that she would not call the

       police, he left.


[9]    N.G. called the police and was escorted to the hospital. Maxwell was arrested

       and charged with Rape, Criminal Confinement, Strangulation, Battery, and

       Invasion of Privacy. At the conclusion of a jury trial on November 17, 2015,

       Maxwell was convicted as charged. Because of Double Jeopardy concerns, the

       trial court entered judgments of conviction on only the Rape and Invasion of

       Privacy verdicts. Maxwell was sentenced to an aggregate term of imprisonment

       of thirty years. He now appeals.



                                  Discussion and Decision
            Sufficiency of the Evidence of Serious Bodily Injury
[10]   When reviewing the sufficiency of the evidence to support a conviction,

       appellate courts must consider only the probative evidence and the reasonable

       inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.

       2007). In so doing, we do not assess witness credibility or reweigh the




       Court of Appeals of Indiana | Memorandum Decision 79A02-1601-CR-154 | August 25, 2016   Page 4 of 8
       evidence. Id. We will affirm the conviction unless no reasonable fact-finder

       could find the elements of the crime proven beyond a reasonable doubt. Id.


[11]   In order to convict Maxwell of Rape, a Level 1 felony, as charged, the State was

       required to show that Maxwell knowingly or intentionally had sexual

       intercourse with N.G. when N.G. was compelled by force or imminent threat

       of force, and that the offense resulted in serious bodily injury to N.G. I.C. § 35-

       42-4-1(b)(3); Confidential App. at 207.


[12]   Maxwell challenges only the sufficiency of the evidence to elevate the offense to

       a Level 1 felony, that is, serious bodily injury. “Serious bodily injury” is bodily

       injury that creates a substantial risk of death or that causes serious permanent

       disfigurement, unconsciousness, extreme pain, permanent or protracted loss or

       impairment of the function of a bodily member or organ, or loss of a fetus. I.C.

       § 35-31.5-2-292.


[13]   The State presented evidence that Maxwell rendered N.G. unconscious by

       strangulation. N.G. testified that Maxwell used his arm to choke her, she began

       to get dizzy, and her ears were ringing; she then “blacked out.” (Tr. at 78.)

       N.G. further testified that when she regained consciousness, she began crying

       and accused Maxwell of trying to kill her. Her pants had been removed. Nurse

       Cathy Clark testified that N.G. appeared to have symptoms consistent with loss

       of consciousness, specifically, memory loss, confusion, and ear pain.


[14]   According to Maxwell, the evidence is insufficient to support the elevation of

       his offense because the evidence of unconsciousness is derived from N.G.’s

       Court of Appeals of Indiana | Memorandum Decision 79A02-1601-CR-154 | August 25, 2016   Page 5 of 8
       “self-reporting at the hospital” as opposed to medical tests, and the State did

       not establish that the episode of unconsciousness was prolonged. Appellant’s

       Brief at 13. Maxwell argues: “if N.G. was unconscious, it was only briefly, and

       such scant evidence should not provide the basis to support a finding of serious

       bodily injury.” Appellant’s Brief at 13. Maxwell’s argument is a blatant request

       that we reweigh evidence and find N.G. to be lacking in credibility. We will

       not do so.


[15]   Because the statute defining serious bodily injury is written in the disjunctive,

       the State need only prove one type of injury to establish serious bodily injury.

       Davis v. State, 819 N.E.2d 91, 100 (Ind. Ct. App. 2004). When the victim was

       rendered unconscious by a blow to the mouth, “[t]his alone was sufficient to

       establish serious bodily injury.” Id. at 100-101. See also State v. Greene, 16

       N.E.3d 416, 420-23 (Ind. 2014) (observing that “serious bodily injury” includes

       bodily injury causing unconsciousness and recognizing, in the context of post-

       conviction proceedings, that “the State presented more than sufficient evidence

       for the jury to infer that Greene’s act of force, i.e. his strangulation of Johnson

       … resulted in serious bodily injury to her”). The State presented sufficient

       evidence to establish that Maxwell committed Rape, as a Level 1 felony.


                                 Appropriateness of Sentence
[16]   Pursuant to Indiana Code Section 35-50-2-4, a person convicted of a Level 1

       felony shall receive a term of imprisonment of between twenty years and forty




       Court of Appeals of Indiana | Memorandum Decision 79A02-1601-CR-154 | August 25, 2016   Page 6 of 8
       years, with thirty years being the advisory sentence. Maxell was given the

       advisory sentence.


[17]   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.” In performing our review, we assess “the

       culpability of the defendant, the severity of the crime, the damage done to

       others, and myriad other factors that come to light in a given case.” Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of such review is

       to attempt to leaven the outliers. Id. at 1225. A defendant ‘“must persuade the

       appellate court that his or her sentence has met th[e] inappropriateness standard

       of review.”’ Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007) (quoting

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


[18]   As for the nature of the offense, Maxwell violated a no-contact order in place

       for the protection of N.G. and their child, and refused to leave the house when

       repeatedly asked to do so. Maxwell then attacked, strangled, and raped his

       former girlfriend while her four minor children were present in the house.


[19]   As to the character of the offender, Maxwell has prior felony convictions in

       Illinois and Indiana, specifically, for Possession of a Controlled Substance,

       Attempted Robbery, and Robbery. He has misdemeanor convictions for Retail

       Theft, Battery, Driving While Intoxicated, and Leaving the Scene of an

       Accident. He was on probation at the time he committed the present offense.


       Court of Appeals of Indiana | Memorandum Decision 79A02-1601-CR-154 | August 25, 2016   Page 7 of 8
[20]   Having reviewed the matter, we conclude that the trial court did not impose an

       inappropriate sentence under Appellate Rule 7(B), and the sentence does not

       warrant appellate revision. Accordingly, we decline to disturb the sentence

       imposed by the trial court.



                                               Conclusion
[21]   Sufficient evidence supports the elevation of Maxell’s crime of rape to a Level 1

       felony. Maxwell has not demonstrated that his advisory sentence is

       inappropriate.


[22]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1601-CR-154 | August 25, 2016   Page 8 of 8
