Gerald W. Stephenson v. State of Indiana

FILED Apr 28 2016, 6:14 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE John B. Norris Gregory F. Zoeller Vandivier Norris & Solomon Attorney General of Indiana Franklin, Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Gerald W. Stephenson, April 28, 2016 Appellant-Defendant, Court of Appeals Case No. 41A01-1507-CR-1030 v. Appeal from the Johnson Superior Court State of Indiana, The Honorable Lance D. Hamner, Appellee-Plaintiff. Judge Trial Court Cause No. 41D03-1410-CM-1490

Najam, Judge. Court of Appeals of Indiana | Opinion 41A01-1507-CR-1030 | April 28, 2016 Page 1 of 10

Statement of the Case [1] Gerald W. Stephenson appeals his conviction for battery, as a Class B

misdemeanor, following a bench trial. Stephenson raises three issues on appeal,

namely:

1. Whether the State presented sufficient evidence to support his conviction.

2. Whether the trial court abused its discretion in sentencing him.

3. Whether his 180-day sentence for Class B misdemeanor battery is inappropriate in light of the nature of the offense and his character.

[2] We affirm.

Facts and Procedural History [3] Jessica Jordan and Stephenson were married for three years before divorcing,

but they subsequently maintained a relationship. Jordan lived in Greenwood,

Indiana and Stephenson lived in Canton, Ohio. Sometime in mid-October

2014, Jordan and Stephenson agreed that Stephenson and his two dogs could

stay at Jordan’s residence in Greenwood because Stephenson had a job

interview that required him to fly out of the Indianapolis airport, and Jordan

would be watching his dogs while he was gone. [4] On October 18, Jordan and Stephenson went to the Taxman Bar and

Restaurant in Bargersville to have a few beers and watch a football game. At

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around half-time, they left the Taxman and returned to Jordan’s home. Once

back at Jordan’s home, Jordan began to prepare dinner while Stephenson

watched the football game in the living room. At some point while cooking

dinner, Jordan told Stephenson she suspected that he had taken some horse-

riding spurs from her closet and given them to an eighteen-year-old girl who

Jordan knew from Facebook and who, she believed, “had a thing for

[Stephenson].” Tr. at 4, 7, 9. Stephenson and Jordan began to argue, and

Stephenson then grabbed Jordan. Jordan attempted to push on Stephenson’s

face to get him out of her way, and this caused abrasions to Stephenson’s face.

Stephenson then pushed Jordan and, as she fell, she hit a coffee table. As

Jordan attempted to get away from Stephenson, he grabbed at her and

scratched her face. Jordan then went to the door of her apartment, opened it,

and yelled out into the hallway. [5] While Stephenson and Jordan had been arguing, Jasmine Forrester, Jordan’s

next door neighbor, heard a loud female voice from inside Jordan’s apartment

and in the hallway saying, “I can’t breathe,” “I’m going to call my dad,” and

“Stop it[,] you’re hurting me.” Id. at 17-19. Forrester called the police.

Approximately five minutes later, Greenwood Police Officer Michele

Richardson arrived at Jordan’s apartment. Before knocking on Jordan’s

apartment door, Officer Richardson heard a female screaming from inside

Jordan’s apartment. When the officer knocked on the door, the screaming

stopped. Two to three minutes later, Stephenson opened the apartment door.

Officer Richardson observed some abrasions on Stephenson’s face. After

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obtaining Stephenson’s permission to enter the apartment, Officer Richardson

found Jordan in the bedroom, crying, upset, and having difficulty breathing.

The officer observed red marks on the right side of Jordan’s face. After

speaking with Forrester, Jordan, and Stephenson, Officer Richardson arrested

Stephenson for domestic battery. [6] The State charged Stephenson with domestic battery, as a Class A

misdemeanor. After a bench trial, the trial court found Stephenson guilty of the

lesser included offense of battery, as a Class B misdemeanor. After a sentencing

hearing, the trial court noted that Stephenson had served little or no jail time for

his past two domestic violence-related convictions and that Stephenson

exhibited no remorse. The trial court found no factors in mitigation. The court

sentenced Stephenson to the maximum sentence of 180 days to be served in the

Johnson County Jail. This appeal ensued.

Discussion and Decision Issue One: Sufficiency of the Evidence

[7] Stephenson asserts that the State failed to present sufficient evidence to support

his conviction. In reviewing a sufficiency of the evidence claim, we neither

reweigh the evidence nor assess the credibility of the witnesses. See, e.g., Jackson

v. State, 925 N.E.2d 369, 375 (Ind. 2010). We consider only the probative

evidence and reasonable inferences therefrom that support the conviction,

Gorman v. State, 968 N.E.2d 845, 847 (Ind. Ct. App. 2012), trans. denied, and we

“consider conflicting evidence most favorably to the trial court’s ruling,” Wright

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v. State, 828 N.E.2d 346, 352 (Ind. 2005). We affirm if the probative evidence

and reasonable inferences drawn from that evidence “could have allowed a

reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.”

Jackson, 925 N.E.2d 375. [8] Pursuant to Indiana Code Section 35-42-2-1(b), to prove that Stephenson

committed battery, as a Class B misdemeanor, the State was required to show

that he knowingly or intentionally touched Jordan “in a rude, insolent, or angry

manner.” The evidence most favorable to the trial court’s ruling showed that,

while arguing with Jordan, Stephenson grabbed and scratched Jordan and

pushed her, causing her to fall onto a coffee table. The testimony of Jordan,

Officer Richardson, and Jordan’s neighbor, Forrester, provided sufficient

evidence of those actions, and those actions constitute battery under the statute. [9] However, Stephenson insists that the evidence is insufficient because he

provided testimony that it was Jordan who had instigated the violence and

battered him. He points to photographs taken of his face after the incident,

showing horizontal scratch marks. He contends that the fact that the scratches

are horizontal proves that Jordan scratched him while he was laying down on

the sofa watching football, not while he was attacking her. However,

Stephenson is simply asking this court to reweigh the evidence, which we

cannot do. The trial court clearly did not find Stephenson’s version of events

credible, and we will not second-guess the court’s credibility assessment.

Jackson, 925 N.E.2d 375.

Court of Appeals of Indiana | Opinion 41A01-1507-CR-1030 | April 28, 2016 Page 5 of 10 [10] Stephenson also maintains that Jordan’s testimony that she scratched

Stephenson’s face as she was trying to push him away from her was incredibly

dubious because the scratch marks were horizontal, not vertical. Under the

incredible dubiosity rule, a court will impinge upon the factfinder’s

responsibility to judge the credibility of witnesses only when confronted with

inherently improbable testimony or coerced, equivocal, wholly uncorroborated

testimony of incredible dubiosity. Whatley v. State, 908 N.E.2d 276, 282 (Ind.

Ct. App. 2009), trans. denied. However, application of the rule is limited to

cases where a single witness presents inherently contradictory testimony which

is equivocal or the result of coercion and there is a complete lack of

circumstantial evidence of guilt. Id. Here, the State presented more than one

witness, and there is ample circumstantial evidence of Stephenson’s guilt to

support his conviction. Accordingly, the incredible dubiosity rule does not

apply. See id. Even if the rule did apply, Jordan’s testimony regarding the

scratches is not “so incredibly dubious or inherently improbable that it runs

counter to human experience, and no reasonable person could believe it.”

Jarrett v. State, 804 N.E.2d 807, 811 (Ind. Ct. App. 2004), aff’d. 829 N.E.2d 930

(Ind. 2005). The State presented sufficient evidence to support Stephenson’s

conviction.

Issue Two: Abuse of Discretion in Sentencing [11] Stephenson contends that the trial court abused its discretion by sentencing him

to the maximum sentence for battery, as a Class B misdemeanor, namely, 180

days fully executed. Ind. Code § 35-50-3-3. Specifically, he asserts that the trial

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court erred by failing to find that mitigating factors outweighed the aggravating

factors. However, the sentencing statute for Class B misdemeanors does not

provide a presumptive or advisory sentence, but rather a maximum allowable

sentence. Id.; Creekmore v. State, 853 N.E.2d 523, 527 (Ind. Ct. App. 2006).

Therefore, the trial court was not required to articulate and balance aggravating

and mitigating circumstances before imposing sentence on the misdemeanor

conviction. Creekmore, 853 N.E.2d at 527. Nor was the trial court required to

issue a sentencing statement with the misdemeanor conviction:

it is clear that abuse of discretion review of a sentence, which concerns a trial court’s duty to issue a sentencing statement along with its findings of aggravators and mitigators, has no place in reviewing a misdemeanor sentence. See Cuyler v. State, 798 N.E.2d 243, 246 (Ind. Ct. App. 2003), trans. denied; see also Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007) (stating that post-Blakely revisions to sentencing statutes included sentencing statement requirement “whenever imposing sentence for a felony offense”).

Morris v. State, 985 N.E.2d 364, 367 (Ind. Ct. App. 2013) (emphasis original),

aff’d in part, rev’d in part on other grounds on reh’g, 985 N.E.2d 364 (Ind. Ct. App.

2013). Therefore, Stephenson’s abuse of discretion in sentencing claim is

without merit.

Issue Three: Appropriateness of Sentence [12] Stephenson also contends that his sentence is inappropriate in light of the

nature of the offense and his character. Article 7, Sections 4 and 6 of the

Indiana Constitution “authorize[] independent appellate review and revision of

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a sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812

(Ind. Ct. App. 2007) (alteration original). This appellate authority is

implemented through Indiana Appellate Rule 7(B). Id. Revision of a sentence

under Rule 7(B) requires the appellant to demonstrate that his sentence is

inappropriate in light of the nature of his offenses and his character. See Ind.

Appellate Rule 7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App.

2007). We assess the trial court’s recognition or non-recognition of aggravators

and mitigators as an initial guide to determining whether the sentence imposed

was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006).

However, “a defendant must persuade the appellate court that his or her

sentence has met th[e] inappropriateness standard of review.” Roush, 875

N.E.2d at 812 (alteration original). [13] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

sentence to the circumstances presented, and the trial court’s judgment “should

receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224

(Ind. 2008). The principal role of appellate review is to attempt to “leaven the

outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

end of the day turns on “our sense of the culpability of the defendant, the

severity of the crime, the damage done to others, and myriad other facts that

come to light in a given case.” Id. at 1224. [14] Stephenson first contends that the nature of the offense does not support an

enhanced sentence. He bases this claim solely on his contention that Jordan

provoked the violence. However, as we have already stated, the trial court

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chose not to give that evidence credence, and we will not reweigh the evidence.

Moreover, the nature of Stephenson’s offense was violent; he grabbed Jordan,

knocked her down, and scratched her, causing abrasions to her face. [15] Stephenson also maintains that the sentence is inappropriate in light of his

character. He points to evidence that he is a fifty-two-year-old, well-educated

professional. He also points to his friend Dunbar’s testimony that Stephenson

is a good person who has helped him when Dunbar was prevented from doing

activities due to his physical disability and that Stephenson “has treated

Dunbar’s son well and has been a good influence for him.”1 Appellant’s Br. at

16. However, the trial court did not recognize any of this evidence as

mitigating circumstances. Rather, the trial court focused on Stephenson’s

criminal history, which it noted included two domestic-violence related

convictions for which Stephenson also denied responsibility and showed no

remorse. Stephenson also had three operating while intoxicated convictions

and one disorderly conduct conviction that also reflect poorly on his character.

See Rutherford, 866 N.E.2d at 874. Thus, we cannot say that his sentence was

inappropriate in light of his character.

1 Stephenson also points to other evidence that relates not to his good character, but to Jordan’s alleged bad character, such as her past criminal history. This other evidence is not relevant to our analysis of Stephenson’s character under Rule 7(B).

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Conclusion [16] The State has provided sufficient evidence to support Stephenson’s conviction;

the trial court did not abuse its discretion in sentencing him to the maximum

sentence; and Stephenson has failed to persuade us that his sentence is

inappropriate in light of the nature of his crime and his character. [17] Affirmed.

Robb, J., and Crone, J., concur.

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