MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 14 2019, 6:35 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Carlos I. Carrillo Curtis T. Hill, Jr. Greenwood, Indiana Attorney General of Indiana
Courtney Staton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Clyde Nelson Magnum Kelley, November 14, 2019 III, Court of Appeals Case No. Appellant-Defendant, 19A-CR-890 Appeal from the Tippecanoe v. Superior Court The Honorable Randy J. Williams, State of Indiana, Judge Appellee-Plaintiff Trial Court Cause No. 79D01-1807-F5-130
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019 Page 1 of 21 Case Summary [1] Following a bench trial, Clyde Kelley, III, was convicted of Level 6 felony
battery resulting in moderate bodily injury, Level 6 felony strangulation, Level
6 felony domestic battery, two counts of Level 6 felony resisting law
enforcement, and one count of Class A misdemeanor resisting law
enforcement. The trial court subsequently sentenced Kelley to an aggregate
term of seven years for his convictions. On appeal, Kelley presents eight issues
for our review, which we consolidate and restate as:
1. Are Kelley’s convictions for battery resulting in moderate bodily injury, strangulation, and domestic battery supported by sufficient evidence?
2. Do Kelley’s multiple convictions for resisting law enforcement violate double jeopardy principles?
3. Did the trial court abuse its discretion in sentencing Kelley?
4. Is Kelly’s sentence inappropriate in light of the nature of the offense and his character?
[2] We affirm in part, reverse in part, and remand with instructions.
Facts & Procedural History [3] The facts most favorable to the convictions follow. In 2017, Kelley lived in
Kentucky and was in a relationship with Star O’Bannon. By July 2018, their
relationship had turned “very hostile,” so O’Bannon broke up with Kelley and
went to stay with Vesheena Walton, who lived in an apartment in West Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019 Page 2 of 21 Lafayette, Indiana. Transcript Vol. II at 19. In an effort to reconcile, O’Bannon
invited Kelley to visit her in West Lafayette, and Kelley did so on July 12,
2018. When Kelley arrived, he and O’Bannon went out to dinner and then
shopping.
[4] Once back at Walton’s apartment, Kelley and O’Bannon remained outside and
argued about another woman. Walton came out several times to check on
O’Bannon. After about an hour, O’Bannon told Kelley that she “want[ed] to
break up” and asked him to leave. Id. at 21. Kelley said that he was not going
to leave until he got “his revenge” and then he grabbed a crowbar out of his
vehicle and hit the passenger window of O’Bannon’s car, shattering it. Id. at
65. Kelley then got in his car and drove away. Walton called the police.
[5] Officer Drew Adams of the West Lafayette Police Department was dispatched
in response to the call and was advised that Kelley was driving a blue Ford
Mustang. As Officer Adams was driving toward the apartment complex, he
passed a car matching the description and initiated a traffic stop. After talking
to Kelley, Officer Adams escorted Kelley back to the apartment complex, where
Officer Adams presented Kelley with a trespass warning. 1
[6] About an hour later, Walton drove to a nearby gas station and O’Bannon
started cleaning the glass out of her car and taking items from her car into
1 Officer Adams did not arrest Kelley for criminal mischief after it was determined that Kelley and O’Bannon were both on the insurance for O’Bannon’s vehicle and after Kelley stated that he would pay for the damage he caused to the car window.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019 Page 3 of 21 Walton’s apartment. On her second trip, Kelley ran up to O’Bannon in the
common area outside Walton’s apartment door. Kelley pushed O’Bannon
against the wall, put his forearm against her and a knife to her throat, and said,
“bitch if you scream, I will kill you.” Id. at 27. As Kelley walked O’Bannon
back outside, Walton pulled up in her car. Kelley put his knife back in his
pocket, but when Walton questioned why Kelley was there, Kelley took the
knife out and made a stabbing motion toward O’Bannon’s chest. O’Bannon
took off running. Kelley then approached Walton, who was still sitting in her
car, and began stabbing her through her open car window. Kelley then took off
running after O’Bannon.
[7] Kelley caught up with O’Bannon and after a “little tussle,” they both fell to the
ground. Id. at 29. Once on the ground, Kelley put both of his hands around
O’Bannon’s neck and began choking her. O’Bannon could not breathe and felt
as though Kelley was “crushing” her throat. Id. Kelley had his hands around
O’Bannon’s neck for only a short time before he again put his knife to her
throat, poking her with the sharp point of the knife blade. Kelley told
O’Bannon, “I could have killed you,” and then he got up and ran away. Id. at
30. After Kelley was gone, O’Bannon went to find Walton and located her at
another friend’s apartment. Walton was hysterical and was bleeding from cuts
on her hand, shoulder, chest, and stomach. Walton had already called the
police to report the attack by Kelley.
[8] Officer Lutz of the West Lafayette Police Department was on duty at 3:00 a.m.
on Friday July 13, 2018, when the “all units call” came over the radio reporting
Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019 Page 4 of 21 the stabbing and identifying the stabbing suspect’s vehicle as a blue Mustang.
Id. at 123. As Officer Lutz drove toward the identified location, he passed the
suspect vehicle. As soon as Officer Lutz turned his car around, Kelley sped up.
Officer Lutz activated his emergency lights and continued to follow Kelley,
who continued to speed up while making several “quick maneuvers”. Id. at
125. Kelley eventually pulled over and exited the car. Despite Officer Lutz’s
orders to stop, Kelley ran into a wooded ravine. Not knowing if Kelley was
armed, Officer Lutz decided not to further pursue Kelley for his own safety and
requested additional assistance.
[9] Deputies Kenneth Rooze and Austin Waibel of the Tippecanoe County
Sheriff’s Department learned of the search for Kelley as they started their
Friday morning shifts. Deputy Rooze went to assist with the search. He
eventually saw an individual matching the suspect’s description walk into a
McDonald’s restaurant and then out another set of doors. When Deputy
Rooze engaged Kelley in the parking lot, Kelley initially put his hands up. As
Deputy Rooze reached for Kelley’s arm to detain him, Kelley took off running.
Deputy Rooze gave chase but could not keep up with Kelley. Deputy Rooze
requested assistance as he returned to his police vehicle.
[10] Deputy Waibel also assisted in the search and set up a perimeter around where
Kelley was believed to be. When Kelley emerged from a wooded area, Deputy
Waibel ordered Kelley to kneel. Kelley paused, but turned and ran as Deputy
Waibel started to approach him. Deputy Waibel pursued Kelley on foot
through a wooded area until Deputy Waibel fell going down a creek
Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019 Page 5 of 21 embankment and sustained an injury to his wrist. Thereafter, Officer Kyle
Goodman of the West Lafayette Police Department saw Kelley emerge from
the wooded area. He began chasing Kelley and ordered him to stop. Officer
Goodman caught up with Kelley and apprehended him.
[11] On July 18, 2018, the State charged Kelley with Count I, Level 5 felony battery
by means of a deadly weapon; Count II, Level 6 felony battery resulting in
moderate bodily injury; Count III, Level 6 felony strangulation; Count IV,
Class A misdemeanor domestic battery; Count V, Level 6 felony resisting law
enforcement; Count VI, Level 6 felony resisting law enforcement; and Count
VII, Class A misdemeanor resisting law enforcement. The State also filed an
information alleging Kelley was a habitual offender. The State subsequently
added Count VIII, Class A misdemeanor invasion of privacy, Counts IX and X,
Class A misdemeanor trespass, and Count XI, Level 5 felony intimidation with
a deadly weapon. 2 On October 30, 2018, Kelley filed his notice of self-defense.
[12] A bench trial commenced on March 5, 2019. At the conclusion of the State’s
evidence, Kelley moved for a directed verdict as to Counts IV, VIII, IX, and X.
The trial court dismissed Counts VIII, IX, and X, but denied Kelley’s request
regarding Count IV. The bench trial continued the following day. At the
2 Counts I and II identified Walton as the victim. Counts III, IV, and XI identified O’Bannon as the victim.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019 Page 6 of 21 conclusion of all the evidence, the trial court found Kelley guilty of Counts II,
III, IV, V, VI, and VII 3 and entered judgment of conviction thereon.
[13] The trial court held a sentencing hearing on March 29, 2019. The court
identified as mitigating factors Kelley’s acknowledgment of responsibility,
history of employment, education, and support of others. The court identified
Kelley’s criminal history as an aggravating factor, specifically noting that Kelley
had accumulated a 2009 rape conviction, a manslaughter conviction in
Kentucky, prior convictions for resisting law enforcement, theft, and false
informing, and four petitions to revoke probation. The court also found as
aggravating that Kelley was on parole at the time of the instant offense and that
he had a child support arrearage. The trial court sentenced Kelley to two years
on Counts II and III and one year on Count IV and ordered Counts III and IV
be served concurrently, but consecutive to Count II. With regard to the
resisting law enforcement convictions, the trial court sentenced Kelley to one
and a half years on Counts V and VI and one year on Count VII and ordered
the sentences on Counts V and VII be served concurrently, but consecutive to
Count VI. The court ordered the sentences on Counts V, VI, and VII to be
served consecutive to Counts II and III, for a total aggregate sentence of seven
years. Kelley now appeals. Additional facts will be provided as necessary.
3 The trial court acquitted Kelley of Counts I and XI.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019 Page 7 of 21 Discussion & Decision 1. Sufficiency
[14] Kelley argues that the evidence is insufficient to support his convictions under
Counts II, III, and IV because the State failed to rebut his claim of self-defense
and because the victims’ testimonies were incredibly dubious. The standard of
review for a challenge to the sufficiency of evidence to rebut a claim of self-
defense is the same as the standard for any sufficiency claim. Wilson v. State,
770 N.E.2d 799, 801 (Ind. 2002). We consider only the probative evidence and
reasonable inferences supporting the trial court’s decision. Tharpe v. State, 955
N.E.2d 836, 844 (Ind. Ct. App. 2011), trans. denied. We neither reweigh the
evidence nor judge the credibility of witnesses. Wilson, 770 N.E.2d at 801. The
trier of fact is entitled to determine which version of the incident to credit and is
the sole judge of the effect that any discrepancies or contradictions might have
on the outcome of the case. Scott v. State, 867 N.E.2d 690, 695 (Ind. Ct. App.
2007), trans. denied.
[15] Self-defense is a legal justification for an otherwise criminal act. Bryant v. State,
984 N.E.2d 240, 250 (Ind. Ct. App. 2013), trans. denied. “A person is justified in
using reasonable force against any other person to protect the person ... from
what the person reasonably believes to be the imminent use of unlawful force.”
Ind. Code § 35-41-3-2(c). The person, however, is not justified in using force if,
among other things, “the person has entered into combat with another person
or is the initial aggressor unless the person withdraws from the encounter and
communicates to the other person the intent to do so and the other person
Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019 Page 8 of 21 nevertheless continues or threatens to continue unlawful action.” I.C. § 35-41-
3-2(g)(3).
[16] To prevail on his self-defense claim, Kelley must show that he: “(1) was in a
place where he had a right to be; (2) acted without fault; and (3) was in
reasonable fear o[r] apprehension of bodily harm.” Richardson v. State, 79
N.E.3d 958, 964 (Ind. Ct. App. 2017), trans. denied. When a claim of self-
defense finds support in the evidence, the State bears the burden of negating at
least one of the necessary elements. Id. If a defendant is convicted despite his
claim of self-defense, we will reverse only if no reasonable person could say that
self-defense was negated beyond a reasonable doubt. Id.
[17] In support of his claim of self-defense, Kelley directs us to his version of what
transpired. Kelley claims he was in a place he had a right to be because
O’Bannon invited him back to Walton’s apartment, that he grabbed O’Bannon
by the jaw only after O’Bannon “mugged” him, which he described as
O’Bannon pushing his forehead with the palm of her hand, and that his forearm
ended up across O’Bannon’s neck as he was fending off what he claims to have
been a knife attack by Walton. Transcript Vol. II at 217.
[18] To rebut Kelley’s claim of self-defense, the State relied upon evidence from its
case-in-chief—that is, the testimony of O’Bannon and Walton, which painted a
picture in stark contrast to Kelley’s version of events. Indeed, O’Bannon
testified that as she was walking toward Walton’s apartment, Kelley ran up to
her, pushed her against the wall, and placed a knife to her throat. After Walton
Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019 Page 9 of 21 returned and confronted Kelley, Kelley stabbed O’Bannon and then attacked
Walton with the knife through her driver’s side window. Kelley continued the
violence by running after O’Bannon, eventually catching up with her and
engaging in a scuffle that resulted in them falling to the ground. Once on the
ground, Kelley placed his hands around O’Bannon’s neck and choked her.
Despite his claims to the contrary, the evidence most favorable to the
convictions reveals that Kelley was not in a place he had a right to be, and he
was not defending himself, but rather, he instigated and willingly participated in
the violence against O’Bannon and Walton. The State’s evidence was sufficient
to rebut Kelley’s claim of self-defense.
[19] Kelley also challenges the sufficiency of the evidence by arguing that the
testimonies of the victims were incredibly dubious. Application of the
incredible dubiosity rule is extremely limited. Under this rule, we will impinge
on the trier of fact’s responsibility to judge the credibility of the witnesses only
when confronted by “‘inherently improbable’ testimony or coerced, equivocal,
wholly uncorroborated testimony of ‘incredible dubiosity.’” Moore v. State, 27
N.E.3d 749, 755 (Ind. 2015) (quoting Tillman v. State, 642 N.E.2d 221, 223 (Ind.
1994)). “[W]hile incredible dubiosity provides a standard that is ‘not
impossible’ to meet, it is a ‘difficult standard to meet, [and] one that requires
great ambiguity and inconsistency in the evidence.’” Id. at 756 (quoting
Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001)). “The testimony must be so
convoluted and/or contrary to human experience that no reasonable person
could believe it.” Edwards, 753 N.E.2d at 622.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019 Page 10 of 21 [20] Here, both O’Bannon and Walton provided detailed testimony as to Kelley’s
attack on them. In claiming their testimonies were incredibly dubious, Kelley
attempts to show inconsistencies by comparing O’Bannon’s testimony with
Walton’s testimony and their respective testimonies with their statements to
police immediately following the incident. Such inconsistencies, however, do
not implicate the incredible dubiosity rule. Kelley’s arguments in this regard
are veiled requests to reweigh the evidence and assess the credibility of the
victims, a task we will not undertake on appeal.
[21] In sum, the facts as set forth above are sufficient to support the court’s
determination of guilt as to battery against Walton resulting in moderate bodily
injury and strangulation and domestic battery against O’Bannon.
2. Double Jeopardy
[22] Kelley argues that his multiple convictions for resisting law enforcement violate
double jeopardy principles. Specifically, Kelley argues that his act of resisting
was one continuous crime. As our Supreme Court has explained:
The continuous crime doctrine is a rule of statutory construction and common law limited to situations where a defendant has been charged multiple times with the same offense. “The continuous crime doctrine does not seek to reconcile the double jeopardy implications of two distinct chargeable crimes; rather, it defines those instances where a defendant’s conduct amounts only to a single chargeable crime.” The Legislature, not this Court, defines when a criminal offense is “continuous,” e.g. not terminated by a single act or fact but subsisting for a definite period and covering successive, similar occurrences.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019 Page 11 of 21 Hines v. State, 30 N.E.3d 1216, 1219 (Ind. 2015) (internal citations omitted).
The continuing crime doctrine essentially provides that actions that are
sufficient in themselves to constitute separate criminal offenses may be so
compressed in time, place, singleness of purpose, and continuity of action as to
constitute a single transaction. Walker v. State, 932 N.E.2d 733, 735 (Ind. Ct.
App. 2010) (citing Riehle v. State, 823 N.E.2d 287, 296 (Ind. Ct. App. 2005),
trans. denied).
[23] Here, Kelley was convicted of Level 6 felony resisting law enforcement based
on his act of fleeing from Officer Lutz in a vehicle (Count VI), Level 6 felony
resisting law enforcement for fleeing from Deputy Waibel which resulted in
injury to Deputy Waibel (Count V), and Class A misdemeanor fleeing on foot
from Officer Goodman and/or Deputy Rooze (Count VII). Kelley argues that
there was one, ongoing pursuit from the point at which he initially fled until he
was apprehended hours later. The State argues that Kelley’s act of resisting was
not continuous as each encounter with law enforcement was separated by a
period of time.
[24] Whether convictions violate double jeopardy is a pure question of law, which
we review de novo. Rexroat v. State, 966 N.E.2d 165, 168 (Ind. Ct. App. 2012),
trans. denied. We begin by noting that in the context of multiple resisting law
enforcement convictions, we have repeatedly held that a defendant’s act of
fleeing by a vehicle and then immediately on foot constitutes one continuous act
of resisting law enforcement. See, e.g., Norris v. state, 113 N.E.3d 1245, 1253
Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019 Page 12 of 21 (Ind. Ct. App. 2018); Lewis v. State, 43 N.E.3d 689, 691 (Ind. Ct. App. 2015);
Nevel v. State, 818 N.E.2d 1, 5 (Ind. Ct. App. 2004).
[25] Here, Kelley fled from Officer Lutz by vehicle during the early morning hours
of July 13. This is the first instance of resisting law enforcement (Count VI).
His convictions for resisting law enforcement on foot (Counts V and VII),
however, are not based on Kelley’s actions immediately following his fleeing
from Officer Lutz. Rather, hours passed before Deputies Rooze, Waibel, and
Goodman encountered Kelley. Under the facts of this case, we conclude that
the instances of resisting giving rise to Kelley’s convictions under Counts V and
VII were not a continuation of his resisting by vehicle giving rise to his
conviction under Count VI. There is thus no double jeopardy violation as to
these two separate instances of resisting law enforcement.
[26] However, the instances of resisting giving rise to Counts V and VII were close
in time, in the same general vicinity, and part of the same act of fleeing. We
therefore conclude that Kelley’s multiple convictions for resisting law
enforcement under Counts V and VII violate the continuing crime doctrine.
We therefore reverse Kelley’s conviction for Class A misdemeanor resisting law
enforcement (Count VII) and remand to the trial court to vacate such
conviction and the sentence imposed thereon.
3. Abuse of Discretion in Sentencing
[27] We first address Kelley’s claim that the trial erred in entering his domestic
battery conviction as a Level 6 felony. Kelley is correct that he was charged
Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019 Page 13 of 21 with Class A misdemeanor domestic battery and such charge was never
amended. At the conclusion of the evidence, the trial court simply stated that it
found Kelley guilty of domestic battery without any further statement as to the
level of the offense. In the court’s bench trial minutes, the court indicated that
Kelley was convicted of domestic battery as a Level 6 felony. At the sentencing
hearing, the State pointed out the error in the bench trial minutes as to the level
of the domestic battery offense, and the court acknowledged such. In its
sentencing order, however, the trial court again incorrectly identified Kelley’s
conviction under count IV as being for domestic battery as a Level 6 felony. 4
[28] The clerical error aside, the trial court also found that due to double jeopardy
concerns, the domestic battery conviction “merged” with the strangulation
conviction. Transcript Vol. III at 63. The State does not dispute that Kelley’s
convictions for strangulation and domestic battery violate double jeopardy
principles. Where a double jeopardy violation has occurred and judgments of
conviction have been entered, a trial court’s act of merging, without vacating
the conviction, is not sufficient to cure the double jeopardy violation. See
Morrison v. State, 824 N.E.2d 734, 742 (Ind. Ct. App. 2005) (noting that a
double jeopardy violation cannot be remedied by the “practical effect” of
concurrent sentences or by merger after a conviction has been entered), trans.
denied. We therefore remand to the trial court with instructions to vacate
4 The abstract of judgment shows that Kelley was convicted of domestic battery as a Class A misdemeanor.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019 Page 14 of 21 Kelley’s domestic battery conviction. There is thus no need to order correction
of the clerical error in the trial court’s sentencing order regarding the level of the
domestic battery offense.
[29] We now turn to Kelley’s argument that the trial court abused its discretion in
sentencing him to an aggregate term of seven years. 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, 875 N.E.2d 218. “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. at 490 (quoting K.S. v. State, 849 N.E.2d
538, 544 (Ind. 2006)). A trial court may abuse its sentencing discretion in a
number of ways, including: (1) failing to enter a sentencing statement at all; (2)
entering a sentencing statement that includes aggravating and mitigating factors
that are unsupported by the record; (3) entering a sentencing statement that
omits reasons that are clearly supported by the record; or (4) entering a
sentencing statement that includes reasons that are improper as a matter of law.
Id. at 490-91.
a. Balancing
[30] Kelley argues that the record “does not specifically show that the trial court
‘balanced’ the mitigating and aggravating circumstances as required in order to
impose enhanced sentences.” Appellant’s Brief at 43. Since Anglemyer, however,
trial courts are no longer obligated to weigh aggravating and mitigating factors
when imposing a sentence. 868 N.E.2d at 491. Where the sentence imposed Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019 Page 15 of 21 falls within statutory sentencing parameters, a trial court cannot be said to have
abused its discretion in failing to properly weigh aggravating and mitigating
factors. Id.
b. Mitigators
[31] Kelley argues that the trial court abused its discretion in failing to consider two
of his proffered mitigating factors. Specifically, Kelley asked the court to
consider that he acted under provocation and that he offered to pay restitution
to his victims. A trial court need not consider proffered mitigating
circumstances that are highly disputable in nature, weight, or significance.
Creekmore v. State, 853 N.E.2d 523, 530 (Ind. Ct. App. 2006), clarified on reh’g,
858 N.E.2d 238. On appeal, the burden rests with the defendant to establish
that the mitigating evidence is both significant and clearly supported by the
record. Carter v. State, 711 N.E.2d 835, 838 (Ind. 1999).
[32] For the trial court to have found that Kelley acted under provocation, the trial
court would have needed to accept his claim of self-defense that was based on
his self-serving statements that O’Bannon “mugged” him and Walton attacked
him with a knife. Transcript Vol. II at 217. The trial court was the finder of fact
and clearly rejected Kelley’s claim of self-defense. His provocation claim
likewise fails for sentencing purposes. With regard to his offer to pay
restitution, Kelley has not established how, given the nature of this case, an
offer to pay restitution was a significant mitigating factor overlooked by the trial
court.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019 Page 16 of 21 c. Aggravators
[33] With regard to aggravating factors, Kelley argues that the court abused its
discretion in considering his support arrearage to be an aggravating factor. He
asserts that the court’s finding in this regard “was essentially that there was no
hardship to Kelley’s autistic minor son by Kelley being incarcerated because he
was already in arrears.” Appellant’s Brief at 45. Although hard to follow,
Kelley’s argument seems to conflate an argument that the trial court abused its
discretion in finding his arrearage to be an aggravating factor with a claim the
trial court abused its discretion in failing to find that his incarceration would
impose an undue hardship on his minor, autistic son. Regardless of the
argument being made, Kelley has failed to establish that the trial court abused
its discretion.
[34] Indeed, we note that in identifying aggravating factors, the court relied
primarily on Kelley’s criminal history, specifically noting his prior convictions
for rape and manslaughter. Thus, even if we assume that the court abused its
discretion in considering his support arrearage as an aggravating factor, we are
convinced the trial court would have imposed the same sentence absent such
consideration. See Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007)
(noting that “even if the trial court is found to have abused its discretion in the
process it used to sentence the defendant, the error is harmless if the sentence
imposed was not inappropriate”), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019 Page 17 of 21 d. Consecutive Sentences
[35] Kelley argues that the trial court erred in ordering his sentences under Counts II
and III to be served consecutively because such offenses arose out of an episode
of criminal conduct. Ind. Code § 35-50-1-2(c), (d) provides that except for
crimes of violence, “the total of the consecutive terms of imprisonment . . . to
which the defendant is sentenced for felony convictions arising out of an
episode of criminal conduct shall not exceed . . . four (4) years” if, as is the case
here, the most serious crime for which the defendant is sentenced is a Level 6
felony.
[36] Here, the trial court imposed a two-year sentence on both Count II and Count
III and ordered that they be served consecutively. Even if we assume that the
convictions arose out of a single episode of criminal conduct, the trial court did
not sentence Kelley in excess of the statutory limit. Kelley has not established
that the trial court abused its discretion in ordering the sentences imposed on
Counts II and III to be served consecutively.
4. Inappropriate Sentence
[37] Kelley argues that his sentence is inappropriate. This court has the
constitutional authority to revise a sentence authorized by statute if, “after due
consideration of the trial court’s decision,” we find that the sentence imposed is
inappropriate in light of the nature of the offense and the character of the
offender. See Ind. Appellate Rule 7(B). The question under App. R. 7(B) is
“not whether another sentence is more appropriate” but rather “whether the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019 Page 18 of 21 sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct.
App. 2008). The burden is on the defendant to persuade the appellate court
that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080
(Ind. 2006). “Sentencing review under Appellate Rule 7(B) is very deferential
to the trial court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012).
[38] In order to assess the appropriateness of a sentence, we first look to the
statutory range established for the classification of the relevant offenses. Here,
Kelley was convicted of Level 6 felony battery resulting in moderate bodily
injury, Level 6 felony strangulation, and two counts of Level 6 felony resisting
law enforcement. 5 The sentencing range for the Level 6 felonies is six months
to two and one-half years, with the advisory sentence being one year. Ind.
Code § 35-50-2-7(b). Kelley received an aggregate sentence of seven years.
[39] With regard to the nature of the offense, we note that after Kelley was warned
by police that he was not permitted to be at the apartment complex, he returned
and instigated an attack on O’Bannon, pushing her against a wall, holding a
knife to her neck, and threatening to kill her if she screamed. When Walton
returned and confronted him, Kelley attacked her with a knife. As a result,
Walton sustained injuries to her thumb, finger, shoulder, chest, and stomach.
Kelley then ran after O’Bannon, and after he had her on the ground, he placed
5 Because we have directed the trial court to vacate Kelley’s Class A misdemeanor domestic battery conviction and Class A misdemeanor resisting law enforcement conviction, we will not consider such in our review of the appropriateness of his sentence.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019 Page 19 of 21 his hands around her neck and choked her. After threatening her one last time,
Kelley stood up and ran into a nearby wooded area. As a result of Kelley’s
attack, O’Bannon suffered from scratches and pain. With regard to the resisting
law enforcement convictions, the record discloses that Kelley fled from
numerous officers at different points in time. Kelley was on the run for hours
before he was apprehended. There is nothing about the nature of the offense
that is deserving of a lesser sentence.
[40] With regard to the character of the offender, we observe that Kelley was thirty-
six years old at the time of sentencing. As an adult, Kelley had accumulated
convictions for two misdemeanor offenses and seven felony offenses. Kelley
admitted that much of his criminal history stemmed from his involvement in a
gang. Kelley reported to the probation department that he had been a member
of the Gangster Disciples from childhood until 2009. In 2009, Kelley was
convicted of raping a woman as an “initiation” ritual for the Gangster
Disciples. Transcript Vol. III at 57. In 2017, Kelley was charged with murder in
Kentucky, although he entered into a plea agreement in which he agreed to
plead guilty to manslaughter in the first degree. Kelley was on parole at the
time of the current offense and has violated the terms of probation on at least
four prior occasions. As the State aptly noted, “[Kelley]’s criminal history is
violent and senseless. It shows repeated criminal conduct and a propensity of
violence towards women.” Appellee’s Brief at 39. There is nothing about
Kelley’s character that warrants a reduction in his sentence. Kelley has not
demonstrated that his seven-year aggregate sentence is inappropriate.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019 Page 20 of 21 [41] Judgment affirmed in part, reversed in part, and remanded with instructions to
vacate Kelley’s convictions for domestic battery and resisting law enforcement
as a Class A misdemeanor.
Brown, J. and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-890 | November 14, 2019 Page 21 of 21