Marcus Hamilton v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 18, 2015
• Docket: 49A05-1502-CR-76
• Status: Published

Opinion

MEMORANDUM DECISION Sep 18 2015, 9:01 am Pursuant to Ind. Appellate Rule 65(D), this 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 Deborah Markisohn Gregory F. Zoeller Marion County Public Defender Attorney General of Indiana Agency Indianapolis, Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Marcus Hamilton, September 18, 2015 Appellant-Defendant, Court of Appeals Case No. 49A05-1502-CR-76 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Anne M. Appellee-Plaintiff. Flannelly, Judge Pro Tempore Trial Court Cause No. 49G04-1408-F5-40181

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1502-CR-76 | September 18, 2015 Page 1 of 10 [1] Marcus Hamilton appeals his conviction and sentence for battery as a level 5

felony. Hamilton raises two issues which we revise and restate as:

I. Whether the evidence is sufficient to sustain his conviction; and

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

We affirm.

Facts and Procedural History

[2] On August 16, 2014, Ishmael Abdulmalik was at a gas station located at 38th

Street and Capitol. He observed an altercation between Sonja Evans and

Hamilton which escalated from an argument to a physical confrontation.

Hamilton hit Evans “pretty hard” with his fist on her face. Transcript at 38.

Hamilton struck Evans four or five times, and the blows made Evans stumble

backwards. Abdulmalik called the police. When Hamilton picked up a very

thick bottle, Abdulmalik intervened and said: “Maybe you should hit me with

the bottle.” Id. at 39.

[3] Indianapolis Metropolitan Police Officer Rob Hons arrived at the scene and

observed Hamilton and Ishmael Abdulmalik yelling back and forth and Evans

sitting by a sidewalk. Officer Hons separated Hamilton and Abdulmalik and

spoke with them individually.

[4] Hamilton was angry, used an elevated voice, and said that Abdulmalik was a

liar. Officer Hons spoke with Evans who was crying, upset, and timid. Officer

Court of Appeals of Indiana | Memorandum Decision 49A05-1502-CR-76 | September 18, 2015 Page 2 of 10 Hons observed a cut on her forehead and some swelling starting to form on her

face around her mouth.

[5] On August 19, 2014, the State charged Hamilton with Count I, battery with

bodily injury as a class A misdemeanor, and Count II, domestic battery as a

class A misdemeanor. Part II of Count I alleged that Hamilton was previously

convicted of battery on the same person, Sonja Evans, and that the offense

constituted a level 5 felony.

[6] On January 22, 2015, the court held a bench trial. Officer Hons and

Abdulmalik testified to the foregoing. Without objection, the court admitted a

certified copy of booking information that contained a picture of Sonja Evans

and a date of October 17, 2014. Officer Hons testified that the Sonja Evans

pictured in the booking information was the same person at the scene. The

booking information listed Evans’s date of birth as February 11, 1976. The

court also admitted a protective order dated July 26, 2012 which ordered

Hamilton to have no contact with “Sonja Evans,” listed Evans’s birth year as

1976, and indicated that Evans and Hamilton resided together and were in an

intimate relationship. State’s Exhibit 6.

[7] Hamilton testified that Evans was his fiancée and that she stayed with him “off

and on.” Transcript at 69. He testified that Evans threw a drink in his face,

that he chased after her but could not catch her, and that he then argued with

Abdulmalik until the police arrived. He denied striking Evans.

Court of Appeals of Indiana | Memorandum Decision 49A05-1502-CR-76 | September 18, 2015 Page 3 of 10 [8] The court found Abdulmalik “very credible” and found Hamilton guilty of

Count I, battery with bodily injury as a class A misdemeanor, and Count II,

domestic battery as a class A misdemeanor. Id. at 83.

[9] The court then asked the prosecutor to proceed to Part II of Count I. The State

moved to dismiss Count II, domestic battery, and the court dismissed that

count. Defense counsel stated that Hamilton stipulated that he was the same

individual who was arrested in Part II of Count I. The court admitted

documents related to cause number 49G17-1207-CM-51029 (“Cause No. 29”).

Specifically, the court admitted the charging information under Cause No. 29

which alleged that Hamilton committed domestic battery as a class A

misdemeanor, battery as a class A misdemeanor, and battery as a class B

misdemeanor all against Sonja Evans on July 25, 2012. The court also

admitted a probable cause affidavit from Cause No. 29, which alleged that

Evans said that Hamilton had been her live-in boyfriend for the past two years,

a plea agreement in Cause No. 29 in which Hamilton agreed to plead guilty to

battery as a class B misdemeanor, and an abstract of judgment for Cause No. 29

indicating that Hamilton was sentenced to 180 days.

[10] Defense counsel argued that the evidence was insufficient that the same Marcus

Hamilton who was arrested was also convicted in Cause No. 29. The

prosecutor argued that it was not reasonable to think that another individual by

the name of Marcus Hamilton happened to appear in court when the trial court

took a factual basis from that individual under Cause No. 29.

Court of Appeals of Indiana | Memorandum Decision 49A05-1502-CR-76 | September 18, 2015 Page 4 of 10 [11] The court found Hamilton guilty of battery as a level 5 felony. On January 30,

2015, Hamilton was sentenced to six years in the Department of Correction

with four years executed and two years suspended to probation.

Discussion

I.

[12] The first issue is whether the evidence is sufficient to sustain Hamilton’s

conviction for battery as a level 5 felony. When reviewing the sufficiency of the

evidence to support a conviction, we must consider only the probative evidence

and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d

144, 146 (Ind. 2007). We do not assess witness credibility or reweigh the

evidence. Id. We consider conflicting evidence most favorably to the trial

court’s ruling. Id. We affirm the conviction unless “no reasonable fact-finder

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

(quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). It is not necessary

that the evidence overcome every reasonable hypothesis of innocence. Id. at

147. The evidence is sufficient if an inference may reasonably be drawn from it

to support the verdict. Id.

[13] Ind. Code § 35-42-2-1 governs the offense of battery and provides that “a person

who knowingly or intentionally: (1) touches another person in a rude, insolent,

or angry manner . . . commits battery, a Class B misdemeanor.” “The offense .

. . is a Class A misdemeanor if it results in bodily injury to any other person.”

Ind. Code § 35-42-2-1(c). “The offense . . . is a Level 5 felony if . . . [t]he person

Court of Appeals of Indiana | Memorandum Decision 49A05-1502-CR-76 | September 18, 2015 Page 5 of 10 has a previous conviction for battery against the same victim.” Ind. Code § 35-

42-2-1(f).

[14] Hamilton concedes that the court had a sufficient evidentiary basis to find him

guilty of battery with bodily injury as a class A misdemeanor, but argues that

the State did not prove beyond a reasonable doubt that the Sonja Evans he

battered in 2014 was the same Sonja Evans he battered in 2012. The State

contends that Hamilton requests this court to reweigh the evidence, and that

with the same name, sex, race, and birth year, together with evidence of a

domestic relationship with Hamilton in both cases, a reasonable trier of fact

need not have doubted that the two women were one and the same.

[15] We note that cases addressing whether evidence is sufficient to sustain an

habitual offender enhancement are instructive in this context. The Indiana

Supreme Court has held:

In regard to the use of documents to establish the existence of prior convictions we have stated:

Certified copies of judgments or commitments containing a defendant’s name or a similar name may be introduced to prove the commission of prior felonies. While there must be supporting evidence to identify the defendant as the person named in the documents, the evidence may be circumstantial. If the evidence yields logical and reasonable inferences from which the finder of fact may determine beyond a reasonable doubt that it was a defendant who was convicted of the prior felony, then a sufficient connection has been shown.

Court of Appeals of Indiana | Memorandum Decision 49A05-1502-CR-76 | September 18, 2015 Page 6 of 10 Tyson v. State, 766 N.E.2d 715, 718 (Ind. 2002) (quoting Hernandez v. State, 716

N.E.2d 948, 953 (Ind. 1999), reh’g denied) (citations omitted).

[16] The record reveals that the present offense and the 2012 offense both indicate

that Sonja Evans was the victim. Hamilton testified that Evans was his fiancée

and that she stayed with him “off and on.” Transcript at 69. The probable

cause affidavit from Cause No. 29 regarding the incident on July 25, 2012,

alleged that Evans said that Hamilton had been her live-in boyfriend for the

past two years. Further, Hamilton concedes that the Evans he battered in the

present case and the woman he battered in 2012 were both born in 1976 and

were black women. Based upon the record, including that both victims had the

same name, race, and birth year, and the evidence that Hamilton and Evans

were in a relationship and engaged, we conclude that the State presented

evidence of a probative nature from which a reasonable trier of fact could have

found that the Sonja Evans battered in August 2014 was the same Sonja Evans

battered in July 2012 and that Hamilton was guilty of battery as a level 5 felony.

II.

[17] The next issue is whether Hamilton’s sentence is inappropriate in light of the

nature of the offense and the character of the offender. Ind. Appellate Rule

7(B) provides that we “may revise a sentence authorized by statute if, after due

consideration of the trial court’s decision, [we find] that the sentence is

inappropriate in light of the nature of the offense and the character of the

offender.” Under this rule, the burden is on the defendant to persuade the

Court of Appeals of Indiana | Memorandum Decision 49A05-1502-CR-76 | September 18, 2015 Page 7 of 10 appellate court that his or her sentence is inappropriate. Childress v. State, 848

N.E.2d 1073, 1080 (Ind. 2006).

[18] Hamilton argues that he received the maximum sentence possible which was

inappropriate. He asserts that the nature of the offense was no more egregious

than a typical battery with bodily injury. He acknowledges that his criminal

history includes two felonies but asserts that his history is far from the worst.

He also points out that he has a nine-year-old daughter with whom he has

contact.

[19] To the extent Hamilton suggests that he received a maximum sentence, we note

that the court suspended two years of his sentence to probation. Thus, we

cannot say that he received the maximum executed sentence. See Davidson v.

State, 926 N.E.2d 1023, 1025 (Ind. 2010) (noting that in reviewing sentences

pursuant to Ind. Appellate Rule 7(B), we may consider not only the

appropriateness of the aggregate length of the sentence, but also “whether a

portion of the sentence is ordered suspended or otherwise crafted using any of

the variety of sentencing tools available to the trial judge”).

[20] Our review of the nature of the offense reveals that Hamilton hit Evans’s face

“pretty hard” with his fist. Transcript at 38. He struck Evans four or five times,

and the blows made her stumble backwards. Officer Hons observed a cut on

Evans’s forehead and some swelling starting to form on her face around her

mouth. Hamilton had previously battered Evans in 2012.

Court of Appeals of Indiana | Memorandum Decision 49A05-1502-CR-76 | September 18, 2015 Page 8 of 10 [21] Our review of the character of the offender reveals that Hamilton has

convictions for kidnapping as a class A felony in 1982, battery as a class A

misdemeanor in 1993, possession of marijuana/hash/synthetic cannabinoid as

a class A misdemeanor in 1996, two counts of carrying a handgun without a

license as class A misdemeanors in 1998, felon in possession of a firearm in

2000, public intoxication as a class B misdemeanor in 2007, battery as a class A

misdemeanor and public intoxication as class B misdemeanors in 2009, battery

as a class A misdemeanor in 2010, public intoxication as a class B misdemeanor

in 2012, and battery as a class B misdemeanor in 2012. The presentence

investigation report (“PSI”) indicates that his overall risk assessment score puts

him in the very high risk to reoffend category.

[22] The PSI indicates that Hamilton has one child, the child lives with her maternal

grandparents, Hamilton is not court-ordered to pay child support, his parental

rights were terminated in 2007, and that the child has been adopted.

[23] After due consideration of the trial court’s decision, we cannot say that the

sentence imposed by the trial court of six years with two years suspended to

probation is inappropriate in light of the nature of the offense and the character

of the offender.

Conclusion

[24] For the foregoing reasons, we affirm Hamilton’s conviction and sentence.

[25] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 49A05-1502-CR-76 | September 18, 2015 Page 9 of 10 Riley, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A05-1502-CR-76 | September 18, 2015 Page 10 of 10