MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Feb 10 2015, 10:39 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Leanna Weissmann Gregory F. Zoeller Lawrenceburg, Indiana Attorney General of Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James Lee, February 10, 2015
Appellant-Defendant, Court of Appeals Case No. 69A05-1409-CR-439 v. Appeal from the Ripley Circuit Court The Honorable James B. Morris, State of Indiana, Judge Appellee-Plaintiff Case No. 69C01-1304-FD-64
Crone, Judge.
Case Summary [1] James Lee appeals his conviction for class D felony domestic battery and his
sentence of two and a half years. He contends that his conviction is
Court of Appeals of Indiana | Memorandum Decision 69A05-1409-CR-439 | February 10, 2015 Page 1 of 8 unsupported by sufficient evidence and that his sentence is inappropriate based
on the nature of the offense and his character. We conclude that sufficient
evidence supports his conviction and that he has failed to carry his burden to
persuade us that his sentence is inappropriate. Accordingly, we affirm.
Facts and Procedural History [2] Lee and S.L. married in January 2008 and lived together in Rexville. One
evening in February 2013, Lee drove himself home after attending his father’s
visitation in Vevay. S.L. noticed that Lee was “intoxicated and having trouble
standing up,” so she “helped him go sit on the couch, so he wouldn’t fall
down.” Tr. at 214, 248. Lee was “very intoxicated and very upset” about how
people acted at the visitation. Id. at 214. S.L. told him that she understood
how he felt because she had lost her father, too. Lee became angry and
“punched [S.L.] in the stomach three times” and then “double backed his
elbow” hitting her in the eye. Id. at 214-15. S.L. believed that “it was getting
out of hand” and went to a different room, where she cried and called a friend.
Id. at 215. Her friend told her to take a picture of her eye injury. S.L. took a
photograph of her eye. State’s Ex. 1. S.L.’s friend also advised her to call the
police, but S.L. did not want to because Lee’s father had just died.
[3] A day or two later, S.L.’s daughter took another picture of S.L.’s eye. State’s
Ex. 2. S.L. went to stay with a friend because of what happened, and she was
afraid. After several more days, S.L. returned home to get clothing. Lee was
there. S.L. told Lee that she “should press charges on him for what he did to
[her] eye and he still hadn’t apologized.” Tr. at 224. Lee became angry and Court of Appeals of Indiana | Memorandum Decision 69A05-1409-CR-439 | February 10, 2015 Page 2 of 8 said, “[Y]ou better think before you do this, you don’t want to f**k with
somebody who has nothing to lose because if they have nothing to lose, they
have nothing to lose.” Id. S.L. felt that her life had been threatened, and she
was afraid.
[4] S.L. went to the Ripley County prosecutor’s office and spoke to investigator
Kurt Enneking. He observed that S.L. had a black eye visible through her
makeup. He showed her how to file a complaint and seek a protective order.
The following day, S.L. sought and obtained a protective order against Lee. As
part of his investigation of S.L.’s claim, Enneking called Lee and recorded the
conversation. State’s Ex. 3. Lee told Enneking that he did not know how S.L.
got the black eye. Lee also stated, “[S.L.] said that we were wrestling around
one night and, and that I blacked her eye but I never knew I done anything.”
Tr. at 315.
[5] The State charged Lee with class A misdemeanor domestic battery and class D
felony domestic battery with a previous felony conviction. A jury trial was
held. S.L., her friend, and Enneking testified. The pictures of S.L.’s black eye
and the recorded phone conversation were submitted. Lee presented no
evidence. The jury found Lee guilty of class A misdemeanor domestic battery.
Lee admitted his prior conviction and pled guilty to class D felony domestic
battery.
[6] At Lee’s sentencing hearing, the trial court found no mitigating factors. The
trial court found that Lee’s history of alcohol-related offenses and domestic
Court of Appeals of Indiana | Memorandum Decision 69A05-1409-CR-439 | February 10, 2015 Page 3 of 8 battery were aggravating circumstances. The trial court sentenced Lee to two
and a half years with one year suspended to probation. Lee appeals.
Discussion and Decision
Section 1 – The evidence is sufficient to support Lee’s conviction for domestic battery. [7] Lee challenges the sufficiency of the evidence supporting his conviction. In
reviewing claims of insufficient evidence, we consider only the evidence and
reasonable inferences arising therefrom supporting the conviction without
reweighing the evidence or judging witness credibility. Henley v. State, 881
N.E.2d 639, 652 (Ind. 2008). “We will affirm a conviction if there is substantial
evidence of probative value such that a reasonable trier of fact could have
concluded the defendant was guilty beyond a reasonable doubt.” Id. “A
conviction can be sustained on only the uncorroborated testimony of a single
witness, even when that witness is the victim.” Bailey v. State, 979 N.E.2d 133,
135 (Ind. 2012).
[8] To convict Lee of class D felony domestic battery, the State was required to
prove beyond a reasonable doubt that he knowingly or intentionally touched his
spouse, S.L., in a rude, angry, or insolent manner, which resulted in bodily
injury to S.L., and that he has a previous felony conviction. Appellant’s App.
at 18-19; Ind. Code § 35-42-2-1.3. Lee’s sufficiency challenge appears to apply
to the State’s burden to prove that he knowingly or intentionally touched S.L.
He argues that the State’s version of the incident was based solely on S.L.’s
Court of Appeals of Indiana | Memorandum Decision 69A05-1409-CR-439 | February 10, 2015 Page 4 of 8 testimony that he hit her, whereas his statements on the recorded phone
conversation indicate that he might have accidentally injured her while
wrestling. Lee urges us to apply the incredible dubiosity rule to S.L.’s
testimony.
[9] Generally, appellate courts do not judge witness credibility, but we may apply
the “incredible dubiosity” rule to impinge upon the factfinder’s function to
judge witness credibility. Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007).
Under the incredible dubiosity rule,
[i]f a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence, a defendant’s conviction may be reversed. This is appropriate only where the court has confronted inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. Application of this rule is rare and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it.
Love v. State,
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Feb 10 2015, 10:39 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Leanna Weissmann Gregory F. Zoeller Lawrenceburg, Indiana Attorney General of Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James Lee, February 10, 2015
Appellant-Defendant, Court of Appeals Case No. 69A05-1409-CR-439 v. Appeal from the Ripley Circuit Court The Honorable James B. Morris, State of Indiana, Judge Appellee-Plaintiff Case No. 69C01-1304-FD-64
Crone, Judge.
Case Summary [1] James Lee appeals his conviction for class D felony domestic battery and his
sentence of two and a half years. He contends that his conviction is
Court of Appeals of Indiana | Memorandum Decision 69A05-1409-CR-439 | February 10, 2015 Page 1 of 8 unsupported by sufficient evidence and that his sentence is inappropriate based
on the nature of the offense and his character. We conclude that sufficient
evidence supports his conviction and that he has failed to carry his burden to
persuade us that his sentence is inappropriate. Accordingly, we affirm.
Facts and Procedural History [2] Lee and S.L. married in January 2008 and lived together in Rexville. One
evening in February 2013, Lee drove himself home after attending his father’s
visitation in Vevay. S.L. noticed that Lee was “intoxicated and having trouble
standing up,” so she “helped him go sit on the couch, so he wouldn’t fall
down.” Tr. at 214, 248. Lee was “very intoxicated and very upset” about how
people acted at the visitation. Id. at 214. S.L. told him that she understood
how he felt because she had lost her father, too. Lee became angry and
“punched [S.L.] in the stomach three times” and then “double backed his
elbow” hitting her in the eye. Id. at 214-15. S.L. believed that “it was getting
out of hand” and went to a different room, where she cried and called a friend.
Id. at 215. Her friend told her to take a picture of her eye injury. S.L. took a
photograph of her eye. State’s Ex. 1. S.L.’s friend also advised her to call the
police, but S.L. did not want to because Lee’s father had just died.
[3] A day or two later, S.L.’s daughter took another picture of S.L.’s eye. State’s
Ex. 2. S.L. went to stay with a friend because of what happened, and she was
afraid. After several more days, S.L. returned home to get clothing. Lee was
there. S.L. told Lee that she “should press charges on him for what he did to
[her] eye and he still hadn’t apologized.” Tr. at 224. Lee became angry and Court of Appeals of Indiana | Memorandum Decision 69A05-1409-CR-439 | February 10, 2015 Page 2 of 8 said, “[Y]ou better think before you do this, you don’t want to f**k with
somebody who has nothing to lose because if they have nothing to lose, they
have nothing to lose.” Id. S.L. felt that her life had been threatened, and she
was afraid.
[4] S.L. went to the Ripley County prosecutor’s office and spoke to investigator
Kurt Enneking. He observed that S.L. had a black eye visible through her
makeup. He showed her how to file a complaint and seek a protective order.
The following day, S.L. sought and obtained a protective order against Lee. As
part of his investigation of S.L.’s claim, Enneking called Lee and recorded the
conversation. State’s Ex. 3. Lee told Enneking that he did not know how S.L.
got the black eye. Lee also stated, “[S.L.] said that we were wrestling around
one night and, and that I blacked her eye but I never knew I done anything.”
Tr. at 315.
[5] The State charged Lee with class A misdemeanor domestic battery and class D
felony domestic battery with a previous felony conviction. A jury trial was
held. S.L., her friend, and Enneking testified. The pictures of S.L.’s black eye
and the recorded phone conversation were submitted. Lee presented no
evidence. The jury found Lee guilty of class A misdemeanor domestic battery.
Lee admitted his prior conviction and pled guilty to class D felony domestic
battery.
[6] At Lee’s sentencing hearing, the trial court found no mitigating factors. The
trial court found that Lee’s history of alcohol-related offenses and domestic
Court of Appeals of Indiana | Memorandum Decision 69A05-1409-CR-439 | February 10, 2015 Page 3 of 8 battery were aggravating circumstances. The trial court sentenced Lee to two
and a half years with one year suspended to probation. Lee appeals.
Discussion and Decision
Section 1 – The evidence is sufficient to support Lee’s conviction for domestic battery. [7] Lee challenges the sufficiency of the evidence supporting his conviction. In
reviewing claims of insufficient evidence, we consider only the evidence and
reasonable inferences arising therefrom supporting the conviction without
reweighing the evidence or judging witness credibility. Henley v. State, 881
N.E.2d 639, 652 (Ind. 2008). “We will affirm a conviction if there is substantial
evidence of probative value such that a reasonable trier of fact could have
concluded the defendant was guilty beyond a reasonable doubt.” Id. “A
conviction can be sustained on only the uncorroborated testimony of a single
witness, even when that witness is the victim.” Bailey v. State, 979 N.E.2d 133,
135 (Ind. 2012).
[8] To convict Lee of class D felony domestic battery, the State was required to
prove beyond a reasonable doubt that he knowingly or intentionally touched his
spouse, S.L., in a rude, angry, or insolent manner, which resulted in bodily
injury to S.L., and that he has a previous felony conviction. Appellant’s App.
at 18-19; Ind. Code § 35-42-2-1.3. Lee’s sufficiency challenge appears to apply
to the State’s burden to prove that he knowingly or intentionally touched S.L.
He argues that the State’s version of the incident was based solely on S.L.’s
Court of Appeals of Indiana | Memorandum Decision 69A05-1409-CR-439 | February 10, 2015 Page 4 of 8 testimony that he hit her, whereas his statements on the recorded phone
conversation indicate that he might have accidentally injured her while
wrestling. Lee urges us to apply the incredible dubiosity rule to S.L.’s
testimony.
[9] Generally, appellate courts do not judge witness credibility, but we may apply
the “incredible dubiosity” rule to impinge upon the factfinder’s function to
judge witness credibility. Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007).
Under the incredible dubiosity rule,
[i]f a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence, a defendant’s conviction may be reversed. This is appropriate only where the court has confronted inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. Application of this rule is rare and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it.
Love v. State, 761 N.E.2d 806, 810 (Ind. 2002) (citations omitted).
[10] Lee asserts that S.L.’s testimony that he punched her in the stomach and
elbowed her eye is inherently improbable in light of her testimony that he was
so drunk that he was staggering and she had to help him to the couch. We
disagree. Unfortunately, it is not uncommon for someone who is very
intoxicated to strike out at someone. The fact that Lee had difficulty keeping
his balance does not mean that he was incapable of knowingly or intentionally
hitting S.L. while they were sitting on the couch. We conclude that S.L.’s
testimony was not incredibly dubious and that her testimony provides sufficient
Court of Appeals of Indiana | Memorandum Decision 69A05-1409-CR-439 | February 10, 2015 Page 5 of 8 evidence that Lee knowingly and intentionally touched her in an angry manner.
Therefore, we affirm his conviction for class D felony battery.
Section 2 – Lee’s sentence is not inappropriate. [11] Lee contends that his sentence is inappropriate pursuant to Indiana Appellate
Rule 7(B), which states, “The 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.” When reviewing a sentence, our principal role is to leaven the
outliers rather than necessarily achieve what is perceived as the correct result.
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “We do not look to
determine if the sentence was appropriate; instead we look to make sure the
sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind.
2012). Lee has the burden to show that his sentence is inappropriate.
Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218.
[12] Turning first to the nature of the offense, we observe that “the advisory sentence
is the starting point the Legislature selected as appropriate for the crime
committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). Lee was
convicted of a class D felony, which has an advisory sentence of one and a half
years and a sentencing range of six months to three years. Ind. Code § 35-50-2-
7. Lee received a sentence of two and a half years. Lee contends that the
nature of the crime was that “a bereaved, drunken man injured his wife in the
Court of Appeals of Indiana | Memorandum Decision 69A05-1409-CR-439 | February 10, 2015 Page 6 of 8 hours after coming home from his father’s visitation.” Appellant’s Br. at 11.
Lee’s argument ignores that S.L. was trying to console him when he punched
her in the stomach three times and elbowed her in the eye. He also threatened
her when she told him that she should report the incident. We are unpersuaded
that the nature of the crime renders Lee’s sentence inappropriate.
[13] As for Lee’s character, he argues that he suffers from serious medical
conditions, completed an alcohol rehabilitation program, and is helping his
sister care for their brother who has Parkinson’s disease. We fail to discern any
link between Lee’s medical conditions and his character for purposes of
reviewing the appropriateness of his sentence. Although Lee successfully
completed a ten-week treatment program for alcohol addiction, we note that
after he finished that program he committed the current offense as well as class
A misdemeanor operating while intoxicated. He has two additional
convictions for class A misdemeanor operating while intoxicated and a
conviction for class D felony operating while intoxicated. Of particular concern
is that he has a 2008 conviction for class A misdemeanor domestic battery.
Despite numerous past encounters with the justice system, Lee has not
reformed his behavior, which does not reflect well on his character. Lee points
to nothing in the record regarding the care of his brother other than his self-
serving statement that he does so. We conclude that Lee has failed to carry his
burden to show that his sentence is inappropriate based on the nature of the
offense and his character.
Court of Appeals of Indiana | Memorandum Decision 69A05-1409-CR-439 | February 10, 2015 Page 7 of 8 [14] Based on the foregoing, we affirm Lee’s conviction and sentence for class D
felony domestic battery.
[15] Affirmed.
Friedlander, J., and Kirsch, J., concur.
Court of Appeals of Indiana | Memorandum Decision 69A05-1409-CR-439 | February 10, 2015 Page 8 of 8