MEMORANDUM DECISION Jan 28 2015, 10:07 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.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Phyllis Emerick Gregory F. Zoeller Kara Krothe Attorney General of Indiana Monroe County Public Defender’s Office Kenneth E. Biggins Bloomington, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Scott Hedrick-Dwyer, January 28, 2015
Appellant-Defendant, Court of Appeals Cause No. 53A05-1405-CR-201 v. Appeal from the Monroe Circuit Court. The Honorable Mary Ellen State of Indiana, Diekhoff, Judge. Appellee-Plaintiff. Cause No. 53C05-1304-FC-383
Darden, Senior Judge
Statement of the Case [1] Scott Hedrick-Dwyer appeals his convictions by jury of criminal confinement as
Court of Appeals of Indiana | Memorandum Decision 53A05-1405-CR-201 | January 28, 2015 Page 1 of 7 a Class C felony1 and battery as a Class A misdemeanor2 as well as his
adjudication as an habitual offender.3 Hedrick-Dwyer also appeals his eighteen-
year sentence. We affirm.
Issues [2] Hedrick-Dwyer raises two issues for our review:
[3] I. Whether the identity evidence was sufficient to support his convictions; and
[4] II. Whether his eighteen-year executed sentence is inappropriate.
Facts and Procedural History [5] On April 7, 2013, Amanda Gilles decided to go roller blading on the B-Line
trail in Bloomington. While she was putting on her roller blades, Gilles noticed
Hedrick-Dwyer and immediately felt uncomfortable because of the way he
stared at her as he walked along the trail. When Gilles started on the trail,
Hedrick-Dwyer was approximately twenty-five feet in front of her. He turned
around and looked at Gilles three times as she approached and then passed him
on her roller blades. Gilles noticed that Hedrick-Dwyer was wearing a gray
1 Ind. Code § 35-42-3-3 (2006).
2 Ind. Code § 35-42-2-2 (2006).
3 Ind. Code § 35-50-2-8 (2005). Court of Appeals of Indiana | Memorandum Decision 53A05-1405-CR-201 | January 28, 2015 Page 2 of 7 sweatshirt and gray sweatpants. He wore nothing on his head. When Gilles
got to the end of the trail, she turned around to go back to her car. She had not
gone very far when she saw Hedrick-Dwyer again. As soon as they made eye
contact, Hedrick-Dwyer tackled Gilles. He straddled her while she was flat on
her back, and he pinned her down so she could not move. Hedrick-Dwyer
punched Gilles several times on the left side of her head and told her to give
him what he wanted. As Hedrick-Dwyer reached for Gilles’ shorts, a woman
approached and Hedrick-Dwyer ran. The woman telephoned the police, who
arrived at the scene and took photographs of Gilles’ injuries.
[6] A few days later, Gilles spoke to a detective from the Bloomington Police
Department and met with a police artist to create a composite sketch of her
attacker. Gilles described him as a white male with very short stubbly hair.
The police published the composite with a physical description of the suspect,
including his clothing, in the local newspaper. Hedrick-Dwyer’s father saw the
composite and contacted the police because he believed his son, whom he had
seen wearing a gray sweatshirt and gray sweatpants the day of the attack, was
Gilles’ attacker. Gilles reviewed a photo array and identified a photograph of
Hedrick-Dwyer based on his facial structure, eyebrows, and hair. Gilles
explained that she was ninety-seven percent certain Hedrick-Dwyer was her
attacker because “there’s always a little bit of uncertainty in life.” Tr. p. 75.
She later positively identified Hedrick-Dwyer in court.
[7] A jury convicted Hedrick-Dwyer of criminal confinement as Class C felony and
battery as a Class A misdemeanor. Hedrick-Dwyer admitted his status as an
Court of Appeals of Indiana | Memorandum Decision 53A05-1405-CR-201 | January 28, 2015 Page 3 of 7 habitual offender. Evidence at the sentencing hearing revealed that Hedrick-
Dwyer has an extensive criminal history that includes misdemeanor convictions
for conversion and two counts of resisting law enforcement as well as felony
convictions for theft, auto theft, and battery resulting in bodily injury where the
victim was a police officer. In addition Hedrick-Dwyer has several failed
attempts at successful completion of probation and was just released from the
Department of Correction a few days before he attacked Gilles. The trial court
sentenced Hedrick-Dwyer to eight years for the criminal confinement
conviction enhanced by ten years due to his habitual offender status and one
year for the battery conviction. The trial court ordered the eighteen-year
sentence to run concurrently with the one-year sentence for an executed
sentence of eighteen years. Hedrick-Dwyer appeals his convictions and
sentence.
Discussion and Decision I. Sufficiency of the Evidence [8] Hedrick-Dwyer first argues that there is insufficient evidence to support his
convictions. Specifically, he contends that the “only evidence that [he]
committed the confinement and battery offenses against [Gilles] is the uncertain
eyewitness testimony of the victim.” Appellant’s Br. p. 6. In reviewing the
sufficiency of the evidence, this Court will affirm the convictions if the
probative evidence and reasonable inferences to be drawn therefrom could
allow a reasonable trier of fact to find the defendant guilty beyond a reasonable
doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). On appeal, we do Court of Appeals of Indiana | Memorandum Decision 53A05-1405-CR-201 | January 28, 2015 Page 4 of 7 not reweigh the evidence or judge the credibility of witnesses. Fields v. State,
679 N.E.2d 898, 900 (Ind. 1997). Rather, we look only to the evidence and
reasonable inferences supporting the judgment to determine whether the trier of
fact could reasonably reach the conclusion. Id. If there is substantial evidence
of probative value supporting a conviction, this Court will not set the judgment
aside. Id.
[9] This Court has previously noted that “there is longstanding precedent from our
supreme court holding that where a defendant’s conviction is based upon his or
her identification as the perpetrator by a sole eyewitness, such identification is
sufficient to sustain the conviction if the identification was unequivocal.”
Gorman v. State, 968 N.E.2d 845, 848 (Ind. Ct. App. 2012), trans. denied. Here,
Gilles’ in-court identification of Hedrick-Dwyer was unequivocal and provides
sufficient evidence to support his criminal confinement and battery convictions.
[10] We further note that even if Gilles had not unequivocally identified Hedrick-
Dwyer in court, our review of the evidence reveals that Gilles was
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MEMORANDUM DECISION Jan 28 2015, 10:07 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.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Phyllis Emerick Gregory F. Zoeller Kara Krothe Attorney General of Indiana Monroe County Public Defender’s Office Kenneth E. Biggins Bloomington, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Scott Hedrick-Dwyer, January 28, 2015
Appellant-Defendant, Court of Appeals Cause No. 53A05-1405-CR-201 v. Appeal from the Monroe Circuit Court. The Honorable Mary Ellen State of Indiana, Diekhoff, Judge. Appellee-Plaintiff. Cause No. 53C05-1304-FC-383
Darden, Senior Judge
Statement of the Case [1] Scott Hedrick-Dwyer appeals his convictions by jury of criminal confinement as
Court of Appeals of Indiana | Memorandum Decision 53A05-1405-CR-201 | January 28, 2015 Page 1 of 7 a Class C felony1 and battery as a Class A misdemeanor2 as well as his
adjudication as an habitual offender.3 Hedrick-Dwyer also appeals his eighteen-
year sentence. We affirm.
Issues [2] Hedrick-Dwyer raises two issues for our review:
[3] I. Whether the identity evidence was sufficient to support his convictions; and
[4] II. Whether his eighteen-year executed sentence is inappropriate.
Facts and Procedural History [5] On April 7, 2013, Amanda Gilles decided to go roller blading on the B-Line
trail in Bloomington. While she was putting on her roller blades, Gilles noticed
Hedrick-Dwyer and immediately felt uncomfortable because of the way he
stared at her as he walked along the trail. When Gilles started on the trail,
Hedrick-Dwyer was approximately twenty-five feet in front of her. He turned
around and looked at Gilles three times as she approached and then passed him
on her roller blades. Gilles noticed that Hedrick-Dwyer was wearing a gray
1 Ind. Code § 35-42-3-3 (2006).
2 Ind. Code § 35-42-2-2 (2006).
3 Ind. Code § 35-50-2-8 (2005). Court of Appeals of Indiana | Memorandum Decision 53A05-1405-CR-201 | January 28, 2015 Page 2 of 7 sweatshirt and gray sweatpants. He wore nothing on his head. When Gilles
got to the end of the trail, she turned around to go back to her car. She had not
gone very far when she saw Hedrick-Dwyer again. As soon as they made eye
contact, Hedrick-Dwyer tackled Gilles. He straddled her while she was flat on
her back, and he pinned her down so she could not move. Hedrick-Dwyer
punched Gilles several times on the left side of her head and told her to give
him what he wanted. As Hedrick-Dwyer reached for Gilles’ shorts, a woman
approached and Hedrick-Dwyer ran. The woman telephoned the police, who
arrived at the scene and took photographs of Gilles’ injuries.
[6] A few days later, Gilles spoke to a detective from the Bloomington Police
Department and met with a police artist to create a composite sketch of her
attacker. Gilles described him as a white male with very short stubbly hair.
The police published the composite with a physical description of the suspect,
including his clothing, in the local newspaper. Hedrick-Dwyer’s father saw the
composite and contacted the police because he believed his son, whom he had
seen wearing a gray sweatshirt and gray sweatpants the day of the attack, was
Gilles’ attacker. Gilles reviewed a photo array and identified a photograph of
Hedrick-Dwyer based on his facial structure, eyebrows, and hair. Gilles
explained that she was ninety-seven percent certain Hedrick-Dwyer was her
attacker because “there’s always a little bit of uncertainty in life.” Tr. p. 75.
She later positively identified Hedrick-Dwyer in court.
[7] A jury convicted Hedrick-Dwyer of criminal confinement as Class C felony and
battery as a Class A misdemeanor. Hedrick-Dwyer admitted his status as an
Court of Appeals of Indiana | Memorandum Decision 53A05-1405-CR-201 | January 28, 2015 Page 3 of 7 habitual offender. Evidence at the sentencing hearing revealed that Hedrick-
Dwyer has an extensive criminal history that includes misdemeanor convictions
for conversion and two counts of resisting law enforcement as well as felony
convictions for theft, auto theft, and battery resulting in bodily injury where the
victim was a police officer. In addition Hedrick-Dwyer has several failed
attempts at successful completion of probation and was just released from the
Department of Correction a few days before he attacked Gilles. The trial court
sentenced Hedrick-Dwyer to eight years for the criminal confinement
conviction enhanced by ten years due to his habitual offender status and one
year for the battery conviction. The trial court ordered the eighteen-year
sentence to run concurrently with the one-year sentence for an executed
sentence of eighteen years. Hedrick-Dwyer appeals his convictions and
sentence.
Discussion and Decision I. Sufficiency of the Evidence [8] Hedrick-Dwyer first argues that there is insufficient evidence to support his
convictions. Specifically, he contends that the “only evidence that [he]
committed the confinement and battery offenses against [Gilles] is the uncertain
eyewitness testimony of the victim.” Appellant’s Br. p. 6. In reviewing the
sufficiency of the evidence, this Court will affirm the convictions if the
probative evidence and reasonable inferences to be drawn therefrom could
allow a reasonable trier of fact to find the defendant guilty beyond a reasonable
doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). On appeal, we do Court of Appeals of Indiana | Memorandum Decision 53A05-1405-CR-201 | January 28, 2015 Page 4 of 7 not reweigh the evidence or judge the credibility of witnesses. Fields v. State,
679 N.E.2d 898, 900 (Ind. 1997). Rather, we look only to the evidence and
reasonable inferences supporting the judgment to determine whether the trier of
fact could reasonably reach the conclusion. Id. If there is substantial evidence
of probative value supporting a conviction, this Court will not set the judgment
aside. Id.
[9] This Court has previously noted that “there is longstanding precedent from our
supreme court holding that where a defendant’s conviction is based upon his or
her identification as the perpetrator by a sole eyewitness, such identification is
sufficient to sustain the conviction if the identification was unequivocal.”
Gorman v. State, 968 N.E.2d 845, 848 (Ind. Ct. App. 2012), trans. denied. Here,
Gilles’ in-court identification of Hedrick-Dwyer was unequivocal and provides
sufficient evidence to support his criminal confinement and battery convictions.
[10] We further note that even if Gilles had not unequivocally identified Hedrick-
Dwyer in court, our review of the evidence reveals that Gilles was
uncomfortable the first time she noticed Hedrick-Dwyer because of the way he
stared at her when he walked along the trail. When Gilles started on the trail,
Hedrick-Dwyer turned around and looked at her three times as she approached
and passed him on her roller blades. When Gilles and Hedrick-Dwyer later
made eye contact, he tackled her, straddled her while she was flat on her back,
pinned her down so she could not move, and punched her head several times.
The attack happened in broad daylight, and Hedrick-Dwyer wore nothing to
cover his head or face. Gilles had ample opportunity to view Hedrick-Dwyer at
Court of Appeals of Indiana | Memorandum Decision 53A05-1405-CR-201 | January 28, 2015 Page 5 of 7 the time of the attack. This is evidence of probative value from which the jury
could have found that Hedrick-Dwyer committed the offenses. Hedrick-
Dwyer’s argument is nothing more than an invitation for us to reweigh the
evidence, which we do not do. See Fields, 679 N.E.2d at 900.
II. Inappropriate Sentence [11] Hedrick-Dwyer next argues that his sentence is inappropriate. Article VII,
section 4 of the Indiana Constitution authorizes independent appellate review
of sentences. Rice v. State, 6 N.E.3d 940, 946 (Ind. 2014). This review is
implemented through Indiana Appellate Rule 7(B), which states that we may
revise a sentence, even if authorized by statute, if after due consideration of the
trial court’s decision, the sentence is inappropriate in light of the nature of the
offense and the character of the offender. In determining whether a sentence is
inappropriate, this Court looks at the culpability of the defendant, the severity
of the crime, the damage done to others, and myriad other factors that come to
light in a given case. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
Hedrick-Dwyer bears the burden on appeal of persuading us that his sentence is
inappropriate. See Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[12] As to the nature of the offense, Hedrick-Dwyer attacked without provocation a
young woman who was roller blading on a designated city trail in broad
daylight. He tackled her, straddled her while she was flat on her back, and
pinned her down so she could not move. He then punched her several times on
the side of the head and told her to give him what he wanted. As to the
character of the offender, we note that the significance of a criminal history in Court of Appeals of Indiana | Memorandum Decision 53A05-1405-CR-201 | January 28, 2015 Page 6 of 7 assessing a defendant’s character is based on the gravity, nature and number of
prior offenses in relation to the current offense. Moss v. State, 13 N.E.3d 440,
447 (Ind. Ct. App. 2014), trans. denied. Here, Hedrick-Dwyer has an extensive
criminal history that includes three misdemeanor and three felony convictions.
He has several failed attempts at probation and was released from the
Department of Correction just a few days before he attacked Gilles. Clearly,
Hedrick-Dwyer has not reformed his criminal behavior despite his numerous
contacts with the criminal justice system. Considering the nature of the offense
and Hedrick-Dwyer’s character, Hedrick-Dwyer has not met his burden of
proving that his sentence is inappropriate.
[13] Affirmed.
[14] Friedlander, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 53A05-1405-CR-201 | January 28, 2015 Page 7 of 7