Lawrence A. Bell v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 03 2019, 10:13 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 Carlos I. Carrillo Curtis T. Hill, Jr. Law Office of Carlos I. Carrillo, LLC Attorney General of Indiana Greenwood, Indiana Erik J. Bryant Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Lawrence A. Bell, April 3, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2453 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Randy J. Williams, Appellee-Plaintiff. Judge Trial Court Cause No. 79D01-1804-F5-65

Najam, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-2453 | April 3, 2019 Page 1 of 9

Statement of the Case [1] Lawrence A. Bell appeals his conviction and sentence for battery, as a Level 5

felony, and his adjudication as a habitual offender. Bell presents two issues for

our review:

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

2. Whether his sentence is inappropriate in light of the nature of the offense and his character.

[2] We affirm.

Facts and Procedural History [3] Bell suffers from bipolar disorder with psychotic features, paranoia, and

schizophrenia. On April 2, 2018, Bell, then an inmate at the Tippecanoe

County Jail, contacted jail personnel by intercom to request that he be moved to

a different cell. Bell stated that if he was not allowed to move, “something bad

was going to happen.” Tr. at 18. A short time after his request to move was

denied, Bell picked up a mop wringer and walked over to where his cell mate,

David Bibbs, was watching television. Bell then, without any provocation,

struck Bibbs over the head with the mop wringer, knocking Bibbs unconscious.

Bell then struck Bibbs twice more with the mop wringer before two inmates

intervened and persuaded Bell to stop. [4] The State charged Bell with two counts of battery, as Level 5 felonies, and

criminal recklessness, as a Level 6 felony. The State also alleged that Bell was a

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habitual offender. Following a bench trial, the trial court found Bell guilty as

charged, but entered judgment of conviction only on the Level 5 felony count of

battery, and the court adjudicated Bell to be a habitual offender. At sentencing,

the trial court identified three aggravators and three mitigators and imposed a

nine-year aggregate sentence, with five years suspended to probation. This

appeal ensued.

Discussion and Decision Issue One: Sufficiency of the Evidence

[5] Bell first contends that the State presented insufficient evidence to support his

battery conviction. As our Supreme Court has stated:

When an appeal raises “a sufficiency of evidence challenge, we do not reweigh the evidence or judge the credibility of the witnesses, and we respect a fact-finder’s ‘exclusive province to weigh conflicting evidence.’” Joslyn v. State, 942 N.E.2d 809, 811 (Ind. 2011) (quoting Alkhalidi v. State, 753 N.E.2d 625, 627 (Ind. 2001)). We consider only the probative evidence and the reasonable inferences that support the verdict. Tharp v. State, 942 N.E.2d 814, 816 (Ind. 2011). “We will affirm ‘if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.’” Joslyn, 942 N.E.2d at 811 (quoting Tobar v. State, 740 N.E.2d 109, 111-12 (Ind. 2000)).

Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018). [6] To prove battery, as a Level 5 felony, as charged here, the State was required to

show that Bell knowingly or intentionally touched Bibbs in a rude, insolent, or

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angry manner by means of a deadly weapon. Ind. Code § 35-42-2-1 (2018). On

appeal, Bell first maintains that the State did not prove that he was the man

who committed the battery against Bibbs. Bell also claims that the State did not

prove that he knowingly or intentionally committed the battery. We address

each contention in turn.

Identity [7] Bell contends that the State did not present any testimony to prove that Bell is

the person who struck Bibbs. Indeed, our review of the transcript shows that,

while Lieutenant Robert Hainje testified that, based on his review of

surveillance footage of the battery, he identified Bell as “a suspect,” he did not

definitively state that Bell had committed the battery. Tr. at 8. And the State

did not present any eyewitness testimony to identify Bell as the perpetrator. [8] But Lieutenant Hainje’s testimony was not the only identity evidence. As the

State points out, the trial court watched surveillance video of the battery, and

the court could have concluded from that video that Bell was the man who

struck Bibbs with the mop wringer.1 In addition, the State presented

circumstantial evidence to prove that Bell was the perpetrator, including

evidence that he had asked to move to a different cell over the intercom before

the battery, as well as testimony that Bell could be seen holding the mop

1 The surveillance video was not provided to this Court on appeal. Regardless, Bell does not dispute (not that he even could without the video) the State’s contention that the video shows Bell committing the battery against Bibbs.

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wringer shortly before the battery. We cannot say that the evidence is

insufficient to prove that Bell is the person who committed the battery against

Bibbs.

Mens Rea [9] Bell also contends that, because he has a severe mental illness, the evidence

does not show that he knowingly or intentionally committed the battery against

Bibbs. In short, Bell maintains that the battery “was not explained by anything

other than his mental illness.” Appellant’s Br. at 14. We cannot agree. [10] First, Bell did not present an insanity defense at his trial. Second, even if Bell

had pleaded insanity, it would not have been the State’s burden to disprove

Bell’s mental illness to prove that he acted knowingly and intentionally in this

instance. See Cate v. State, 644 N.E.2d 546, 548 (Ind. 1994). [11] A person engages in conduct “intentionally” if, when he engages in the

conduct, it is his conscious objective to do so, and a person engages in conduct

“knowingly” if, when he engages in the conduct, he is aware of a high

probability that he is doing so. Ind. Code § 35-41-2-2. Here, the State

presented evidence, including video surveillance recordings, showing that Bell

threatened that something bad would happen if he could not move to a new cell

and that Bell, without provocation, struck Bibbs, his cell mate, three times with

a mop wringer before two other inmates stopped him from striking him a fourth

time. This evidence is sufficient to prove that Bell knowingly and intentionally

committed battery.

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Issue Two: Sentence [12] Bell contends that his sentence is inappropriate in light of the nature of the

offense and his character. Indiana Appellate Rule 7(B) provides that “[t]he

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.” This Court

has recently held that “[t]he advisory sentence is the starting point the

legislature has selected as an appropriate sentence for the crime committed.”

Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the Indiana

Supreme Court has explained that:

The principal role of appellate review should be to attempt to leaven the outliers . . . but not achieve a perceived “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. [Anglemyer, 868 N.E.2d at 494].

Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in 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, 895 N.E.2d at 1222. 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.

The question is not whether another sentence is more appropriate, but rather

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whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless

overcome by compelling evidence portraying in a positive light the nature of the

offense (such as accompanied by restraint, regard, and lack of brutality) and the

defendant’s character (such as substantial virtuous traits or persistent examples

of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). [14] Indiana Code Section 35-50-2-6(b) states that a person convicted of a Level 5

felony shall be imprisoned for a fixed term between one and six years, with an

advisory sentence of three years. Indiana Code Section 35-50-2-8 states in

relevant part that, where a person has been convicted of a Level 5 felony and

found to be a habitual offender, the court shall sentence him to an additional

fixed term that is between two years and six years. Here, the trial court

identified as aggravating circumstances Bell’s criminal history, his history of

substance abuse, and his failed attempts at rehabilitation. The trial court

identified as mitigating circumstances Bell’s mental illness, the victim’s wishes,2

and Bell’s family support. The trial court found that the aggravators

outweighed the mitigators and imposed five years for the Level 5 battery,

suspended to probation, with a four-year habitual offender enhancement, which

is non-suspendible, to be executed in the Department of Correction.

2 Bibbs wrote a letter to the trial court stating, in essence, that he did not think the State should have brought charges against Bell.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2453 | April 3, 2019 Page 7 of 9 [15] Bell maintains that his sentence is inappropriate in light of the nature of the

offense because the battery was “sporadic, random, and without reasonable

explanation” and could only be explained by his severe mental illness.

Appellant’s Br. at 17. Bell asserts that jail personnel knew he was mentally ill

and that his request to move “should have been granted for the safety of Bell

and others.” Id. As for his character, Bell points out the evidence showing that

the battery was an “impulsive reaction” consistent with his mental illness, as

well as his mother’s testimony that he could be “kind” and “thoughtful” when

he was “mentally stable.” Id. at 19. [16] We cannot say that Bell’s sentence is inappropriate in light of the nature of the

offense. After Bell struck Bibbs with a mop wringer, which weighed

approximately eight pounds, and knocked Bibbs unconscious, he struck Bibbs

twice more with the mop wringer. Bell only stopped because two other inmates

intervened. Bibbs had no memory of the attack, and he experienced “throbbing

pain” in his head for a week. Tr. at 37-38. [17] Neither can we say that Bell’s sentence is inappropriate in light of his character.

Bell’s criminal history is substantial. In particular, Bell has nine prior felony

convictions and twenty-seven prior misdemeanor convictions, and his

probation has been revoked five times. In addition, at the time Bell committed

the battery against Bibbs, he was incarcerated awaiting trial on pending theft

charges. Bell admitted to a history of substance abuse dating back to his

teenage years, but he first sought substance abuse treatment in 2018. While Bell

is clearly mentally ill, the trial court took that factor into consideration and gave

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it mitigating weight. In light of Bell’s extensive criminal history, we cannot say

that his mental illness warrants a revised sentence. [18] Affirmed.

Baker, J., and Robb, J., concur.

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