MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as Jun 23 2015, 1:19 pm 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
Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Shawn L. Elam, June 23, 2015
Appellant-Defendant, Court of Appeals Case No. 15A01-1411-CR-489 v. Appeal from the Dearborn Superior Court State of Indiana, The Honorable Sally Blankenship, Judge Appellee-Plaintiff Case No. 15D02-1401-FD-18
Crone, Judge.
Case Summary [1] Shawn Elam appeals his four-year sentence for class D felony domestic battery
with a child present and class D felony neglect of a dependent. The dispositive
issue presented for our review is whether the sentence is inappropriate in light
Court of Appeals of Indiana | Memorandum Decision 15A01-1411-CR-489 | June 23, 2015 Page 1 of 6 of the nature of the offense and the character of the offender. Finding that Elam
has failed to show that his sentence is inappropriate, we affirm.
Facts and Procedural History [2] One night in January 2014, Elam took $400 or $500 from his fiancée, L.C.,
with whom he shared an infant son, and went to the casino. He won $800 and
took that money back to the casino the next morning. After gambling that day,
he came home angry because he had lost all of the money. He took a vacuum
cleaner that he and L.C. had recently purchased and returned it for more
gambling money, which he also promptly lost. When Elam returned home,
L.C. was sitting on the couch cradling their two-month-old son in her arms.
Elam took the baby from L.C.’s arms and tossed him onto the couch. He then
grabbed L.C. by the hair, threw her onto the floor, and kicked her with his steel-
toed boots. Elam then placed a pillow over L.C.’s face to suffocate her.
Afterwards, Elam put his hands around L.C.’s neck, strangling her, and said
that he “wanted to watch [her] eyes roll behind [her] head and pop out of [her]
face.” Tr. at 37. Elam also said he was going to kill L.C., her grandmother, and
their baby if she did not find more money for him.
[3] L.C. called a friend using Elam’s phone and asked to borrow some money. The
friend agreed to lend L.C. the money, and Elam allowed her to go pick it up
while the baby stayed behind with him. When L.C. arrived at the friend’s
house, he noticed the marks on her face and neck and asked what happened
and why L.C. had not called the police. She told her friend that she had not
called because she did not have access to a phone. L.C. left with the money, but Court of Appeals of Indiana | Memorandum Decision 15A01-1411-CR-489 | June 23, 2015 Page 2 of 6 on her way home decided to go to the police station. L.C. reported the incident
to the police, and they accompanied her to her house. When Elam saw that the
police were at the door instead of L.C., he slammed and locked the door. The
police kicked down the door with their tasers drawn and pointed toward Elam.
Elam held the baby in front of himself as a shield until police convinced him to
put the baby down.
[4] The State charged Elam with class D felony domestic battery with a child
present; class D felony intimidation; class D felony strangulation; class B
misdemeanor battery; and class D felony neglect of a dependent. Elam agreed
to plead guilty to domestic battery and neglect of a dependent in exchange for
the dismissal of the remaining charges. Sentencing was left to the trial court’s
discretion and Elam received three years for domestic battery and one year for
neglect of a dependent to be executed consecutively for an aggregate term of
four years of imprisonment.
Discussion and Decision [5] Elam contends that his sentence is inappropriate and seeks resentencing to the
advisory one-and-one-half-year sentence on the domestic battery conviction to
run concurrent to his sentence for neglect of a dependent. This “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.” Ind. Appellate Rule
7(B). Whether the reviewing court regards a sentence as inappropriate turns on
a “sense of the culpability of the defendant, the severity of the crime, the Court of Appeals of Indiana | Memorandum Decision 15A01-1411-CR-489 | June 23, 2015 Page 3 of 6 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). This Court “must
give ‘deference to a trial court’s sentencing decision, both because Rule 7(B)
requires us to give due consideration to that decision and because we
understand and recognize the unique perspective a trial court brings to its
sentencing decisions.”’ Gil v. State, 988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013)
(quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007)). The
defendant bears the burden of persuading the Court that his sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The
defendant bears the burden of showing both prongs of the inquiry—the nature
of the offense and the character of the defendant—favor revision of his
sentence. Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013), trans.
denied.
[6] Regarding the nature of the offense, Elam argues that the sentence is
inappropriate because no injury actually occurred to his son since he ultimately
put the infant down safely. Even though the baby suffered no physical injury,
Elam’s actions in holding the baby as a shield from the tasers being aimed at
him nonetheless endangered the child. Further, Elam’s throwing the baby on
the couch placed the child in danger. The child could have bounced off of the
couch and onto the floor, or landed in a position that could have injured the
child.
[7] Elam further argues that the advisory one-and-one-half-year sentence for
domestic battery is more appropriate because the legislature has taken into
Court of Appeals of Indiana | Memorandum Decision 15A01-1411-CR-489 | June 23, 2015 Page 4 of 6 account the severity of each crime in designating the crime’s level and
proportioning the punishment accordingly. The inquiry for the appellate court
is whether the sentence imposed is inappropriate, “not whether another
sentence is more appropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App.
2008). The advisory sentence is “the starting point the Legislature has selected
as an appropriate sentence for the crime committed.” Anglemyer v. State, 868
N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as Jun 23 2015, 1:19 pm 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
Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Shawn L. Elam, June 23, 2015
Appellant-Defendant, Court of Appeals Case No. 15A01-1411-CR-489 v. Appeal from the Dearborn Superior Court State of Indiana, The Honorable Sally Blankenship, Judge Appellee-Plaintiff Case No. 15D02-1401-FD-18
Crone, Judge.
Case Summary [1] Shawn Elam appeals his four-year sentence for class D felony domestic battery
with a child present and class D felony neglect of a dependent. The dispositive
issue presented for our review is whether the sentence is inappropriate in light
Court of Appeals of Indiana | Memorandum Decision 15A01-1411-CR-489 | June 23, 2015 Page 1 of 6 of the nature of the offense and the character of the offender. Finding that Elam
has failed to show that his sentence is inappropriate, we affirm.
Facts and Procedural History [2] One night in January 2014, Elam took $400 or $500 from his fiancée, L.C.,
with whom he shared an infant son, and went to the casino. He won $800 and
took that money back to the casino the next morning. After gambling that day,
he came home angry because he had lost all of the money. He took a vacuum
cleaner that he and L.C. had recently purchased and returned it for more
gambling money, which he also promptly lost. When Elam returned home,
L.C. was sitting on the couch cradling their two-month-old son in her arms.
Elam took the baby from L.C.’s arms and tossed him onto the couch. He then
grabbed L.C. by the hair, threw her onto the floor, and kicked her with his steel-
toed boots. Elam then placed a pillow over L.C.’s face to suffocate her.
Afterwards, Elam put his hands around L.C.’s neck, strangling her, and said
that he “wanted to watch [her] eyes roll behind [her] head and pop out of [her]
face.” Tr. at 37. Elam also said he was going to kill L.C., her grandmother, and
their baby if she did not find more money for him.
[3] L.C. called a friend using Elam’s phone and asked to borrow some money. The
friend agreed to lend L.C. the money, and Elam allowed her to go pick it up
while the baby stayed behind with him. When L.C. arrived at the friend’s
house, he noticed the marks on her face and neck and asked what happened
and why L.C. had not called the police. She told her friend that she had not
called because she did not have access to a phone. L.C. left with the money, but Court of Appeals of Indiana | Memorandum Decision 15A01-1411-CR-489 | June 23, 2015 Page 2 of 6 on her way home decided to go to the police station. L.C. reported the incident
to the police, and they accompanied her to her house. When Elam saw that the
police were at the door instead of L.C., he slammed and locked the door. The
police kicked down the door with their tasers drawn and pointed toward Elam.
Elam held the baby in front of himself as a shield until police convinced him to
put the baby down.
[4] The State charged Elam with class D felony domestic battery with a child
present; class D felony intimidation; class D felony strangulation; class B
misdemeanor battery; and class D felony neglect of a dependent. Elam agreed
to plead guilty to domestic battery and neglect of a dependent in exchange for
the dismissal of the remaining charges. Sentencing was left to the trial court’s
discretion and Elam received three years for domestic battery and one year for
neglect of a dependent to be executed consecutively for an aggregate term of
four years of imprisonment.
Discussion and Decision [5] Elam contends that his sentence is inappropriate and seeks resentencing to the
advisory one-and-one-half-year sentence on the domestic battery conviction to
run concurrent to his sentence for neglect of a dependent. This “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.” Ind. Appellate Rule
7(B). Whether the reviewing court regards a sentence as inappropriate turns on
a “sense of the culpability of the defendant, the severity of the crime, the Court of Appeals of Indiana | Memorandum Decision 15A01-1411-CR-489 | June 23, 2015 Page 3 of 6 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). This Court “must
give ‘deference to a trial court’s sentencing decision, both because Rule 7(B)
requires us to give due consideration to that decision and because we
understand and recognize the unique perspective a trial court brings to its
sentencing decisions.”’ Gil v. State, 988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013)
(quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007)). The
defendant bears the burden of persuading the Court that his sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The
defendant bears the burden of showing both prongs of the inquiry—the nature
of the offense and the character of the defendant—favor revision of his
sentence. Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013), trans.
denied.
[6] Regarding the nature of the offense, Elam argues that the sentence is
inappropriate because no injury actually occurred to his son since he ultimately
put the infant down safely. Even though the baby suffered no physical injury,
Elam’s actions in holding the baby as a shield from the tasers being aimed at
him nonetheless endangered the child. Further, Elam’s throwing the baby on
the couch placed the child in danger. The child could have bounced off of the
couch and onto the floor, or landed in a position that could have injured the
child.
[7] Elam further argues that the advisory one-and-one-half-year sentence for
domestic battery is more appropriate because the legislature has taken into
Court of Appeals of Indiana | Memorandum Decision 15A01-1411-CR-489 | June 23, 2015 Page 4 of 6 account the severity of each crime in designating the crime’s level and
proportioning the punishment accordingly. The inquiry for the appellate court
is whether the sentence imposed is inappropriate, “not whether another
sentence is more appropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App.
2008). The advisory sentence is “the starting point the Legislature has selected
as an appropriate sentence for the crime committed.” Anglemyer v. State, 868
N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. A person who
commits class D felony domestic battery “shall be imprisoned for a fixed term
of between six months and three years, with the advisory sentence being one
and one-half years.” Ind. Code § 35-50-2-7(a). That crime is committed by one
who knowingly or intentionally touches an individual with whom he has a
child in common in a rude, insolent, or angry manner that results in bodily
injury to the person in the physical presence of a child less than sixteen years of
age, knowing that the child is present and might be able to see or hear the
offense. Ind. Code § 35-42-2-1.3.
[8] Elam, in the presence of their child, grabbed L.C. by her hair, threw her on the
ground, and then suffocated, choked, and kicked her leaving bodily injuries to
her knee, head, eyes, neck, and elbows. Elam threatened to kill L.C., their baby,
and L.C.’s grandmother if she did not retrieve money to replace the money he
lost gambling. The nature of this attack is extremely violent and senseless and
warrants a sentence in excess of the advisory. Ordering the sentences for
domestic battery and neglect of a dependent to be served consecutively is not
inappropriate because multiple victims justify the imposition of consecutive
Court of Appeals of Indiana | Memorandum Decision 15A01-1411-CR-489 | June 23, 2015 Page 5 of 6 sentences. Gleaves v. State, 859 N.E.2d 766, 772 (Ind. Ct. App. 2007). Here, both
L.C. and the child were victims.
[9] Regarding his character, Elam argues that acknowledging the behavior that led
to this crime at sentencing and completing anger management and parenting
classes while incarcerated speaks well to his character and renders the sentence
inappropriate. We disagree. Elam has a criminal history that includes a juvenile
adjudication for receiving stolen property and a subsequent probation violation;
convictions as an adult for illegal possession of an alcoholic beverage in Indiana
in 2005; improper handling of a firearm in a motor vehicle in Ohio in 2007;
disorderly conduct in Ohio in 2008; possession of drugs in Ohio in 2010; and
driving under financial responsibility suspension in Ohio in 2013; an active
warrant for operating on a suspended/revoked driving license in Kentucky in
2013; and the instant matter. The irrational, cruel, and violent behavior
exhibited by Elam in his attack on L.C. and his son further reflects his poor
character. Thus, Elam has failed to show that both the nature of the offense and
his character render his four-year aggregate sentence inappropriate.
[10] Affirmed.
Brown, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 15A01-1411-CR-489 | June 23, 2015 Page 6 of 6