MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any court except for the purpose of establishing Jun 24 2020, 10:11 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana – Appellate Division Jodi Kathryn Stein Timothy J. Burns Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tommy L. Sanders, June 24, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-22 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Angela Dow Appellee-Plaintiff. Davis, Judge The Honorable Matthew M. Kubacki, Judge Pro Tempore Trial Court Cause No. 49G16-1907-F6-29949
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-22 | June 24, 2020 Page 1 of 9 [1] Tommy Sanders (“Sanders”) was convicted in Marion Superior Court of Level
6 felony domestic battery. Sanders challenges the sufficiency of the evidence,
arguing that the State failed to prove that the offense occurred in the presence of
a child less than sixteen years of age. Sanders also argues that his 730-day
sentence, with 722 days suspended and 365 days on probation, is inappropriate
in light of the nature of the offense and the character of the offender.
[2] We affirm.
Facts and Procedural History [3] In July 2019, Sanders and his girlfriend, Heather Vonburg (“Vonburg”), lived
with Vonburg’s brother, Storm Mulroney (“Mulroney”), and her sister-in-law,
Rayschell Capps (“Capps”). Vonburg’s four-year-old daughter and Capps’s
four-year-old son lived at the residence as well. The residents of the home,
including the children, generally slept in the front room of the house.
[4] On the evening of July 26, 2019, Vonburg’s daughter and Capps and her son
were trying to sleep in the front room when Sanders and Vonburg began
arguing in the same room. During the argument, Vonburg tried to stand up
from the couch where she was seated, and Sanders pushed her down. He then
grabbed Vonburg by the throat and held her against a wall. Tr. pp. 7–8.
[5] Shortly thereafter, Sanders and Vonburg resumed arguing in the kitchen.
During their argument, Mulroney arrived home and observed the couple in the
kitchen screaming at each other. Mulroney told Sanders he needed to leave the
residence. Sanders then pushed a table at Vonburg, and the table struck her. Court of Appeals of Indiana | Memorandum Decision 20A-CR-22 | June 24, 2020 Page 2 of 9 Mulroney called the police. The responding officer who spoke to Vonburg
observed redness around her neck. Tr. p. 40.
[6] On July 31, 2019, the State charged Sanders with Level 6 felony domestic
battery. The charging information alleged that Sanders knowingly touched
Vonburg “in a rude, insolent, or angry manner by grabbing her” and that the
offense was committed “in the presence of a child less than 16 years of age.”
Appellant’s App. p. 15. The State also alleged that Sanders knew the child was
present and “might be able to see or hear the offense.” Id.
[7] Sanders’s bench trial commenced on November 7, 2019. Vonburg did not
testify at trial. At Sanders’s request, the trial court continued the trial so that he
could secure the testimony of his defense witnesses. The bench trial concluded
on December 5, 2019.
[8] The trial court found Sanders guilty as charged. Sanders waived his right to a
presentence investigation report, and the trial court proceeded to hold the
sentencing hearing. The court considered the physical nature of the offense as
an aggravating circumstance. Twenty-nine-year-old Sanders was employed full
time and had no prior criminal history. The court considered his lack of
criminal history and that the offense was unlikely to reoccur as mitigating
circumstances. The court found that the mitigating circumstances outweighed
the aggravating circumstance. The trial court ordered Sanders to serve 730 days,
gave him credit for four days he served in jail awaiting trial and four days of
good-time credit, and suspended the remainder of the sentence. The court
Court of Appeals of Indiana | Memorandum Decision 20A-CR-22 | June 24, 2020 Page 3 of 9 ordered Sanders to serve 365 days on probation and to participate in the
Batterer’s Intervention Program. The court indicated that if Sanders completed
the program within 180 days, he could file a petition to terminate his probation.
If Sanders enrolled in the program but was unable to complete it within 180
days, he could petition for non-reporting probation. Sanders now appeals.
I. Sufficient Evidence
[9] Upon review of a challenge to the sufficiency of the evidence to support a
criminal conviction, we respect the fact-finder’s exclusive province to weigh
conflicting evidence. Miller v. State, 106 N.E.3d 1067, 1073 (Ind. Ct. App. 2018)
(citing McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)), trans. denied. We
therefore neither reweigh the evidence nor judge the credibility of the witnesses.
Id. Instead, we consider only the probative evidence and reasonable inferences
supporting the judgment. Id.
[10] To prove that Sanders committed Level 6 felony domestic battery, the State was
required to prove that he knowing touched Vonburg in a rude, insolent, or
angry manner in the presence of a child less than sixteen years of age knowing
that the child was present and might be able to see or hear the offense. Ind.
Code § 35-42-2-1.3(a)(1), (b)(2); Appellant’s App. p. 15. Sanders concedes that
the evidence is sufficient to prove that he touched Vonburg in a rude, insolent,
or angry manner. Appellant’s Br. at 8.
[11] However, he argues that the State failed to prove that Sanders committed the
offense in the presence of a child less than sixteen years of age, knowing that
Court of Appeals of Indiana | Memorandum Decision 20A-CR-22 | June 24, 2020 Page 4 of 9 the child was present and might be able to see or hear the offense. This charged
element elevated the offense from a Class A misdemeanor to a Level 6 felony.
I.C. § 35-42-2-1.3(a)(1), (b)(2).
[12] The State was not required to prove that the child actually saw or heard the
battery, but only “the possibility” that the child “might” see or hear it. True v.
State, 954 N.E.2d 1105, 1111 (Ind. Ct. App. 2011) (citing Boyd v. State, 889
N.E.2d 321, 325 (Ind. Ct. App. 2008), trans. denied); see also Manuel v. State, 971
N.E.2d 1262, 1270 (Ind. Ct. App. 2012) (explaining that “the critical question
in determining whether a child is ‘present’ for purposes of the [domestic battery]
statute is whether a reasonable person would conclude that the child might see
or hear the offense; not whether the child is in the same room as where the
offense is taking place.”).
[13] Sanders battered Vonburg in the front room of the house where Capps, her
four-year-old son, and Vonburg’s four-year-old daughter were trying to sleep.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any court except for the purpose of establishing Jun 24 2020, 10:11 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana – Appellate Division Jodi Kathryn Stein Timothy J. Burns Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tommy L. Sanders, June 24, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-22 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Angela Dow Appellee-Plaintiff. Davis, Judge The Honorable Matthew M. Kubacki, Judge Pro Tempore Trial Court Cause No. 49G16-1907-F6-29949
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-22 | June 24, 2020 Page 1 of 9 [1] Tommy Sanders (“Sanders”) was convicted in Marion Superior Court of Level
6 felony domestic battery. Sanders challenges the sufficiency of the evidence,
arguing that the State failed to prove that the offense occurred in the presence of
a child less than sixteen years of age. Sanders also argues that his 730-day
sentence, with 722 days suspended and 365 days on probation, is inappropriate
in light of the nature of the offense and the character of the offender.
[2] We affirm.
Facts and Procedural History [3] In July 2019, Sanders and his girlfriend, Heather Vonburg (“Vonburg”), lived
with Vonburg’s brother, Storm Mulroney (“Mulroney”), and her sister-in-law,
Rayschell Capps (“Capps”). Vonburg’s four-year-old daughter and Capps’s
four-year-old son lived at the residence as well. The residents of the home,
including the children, generally slept in the front room of the house.
[4] On the evening of July 26, 2019, Vonburg’s daughter and Capps and her son
were trying to sleep in the front room when Sanders and Vonburg began
arguing in the same room. During the argument, Vonburg tried to stand up
from the couch where she was seated, and Sanders pushed her down. He then
grabbed Vonburg by the throat and held her against a wall. Tr. pp. 7–8.
[5] Shortly thereafter, Sanders and Vonburg resumed arguing in the kitchen.
During their argument, Mulroney arrived home and observed the couple in the
kitchen screaming at each other. Mulroney told Sanders he needed to leave the
residence. Sanders then pushed a table at Vonburg, and the table struck her. Court of Appeals of Indiana | Memorandum Decision 20A-CR-22 | June 24, 2020 Page 2 of 9 Mulroney called the police. The responding officer who spoke to Vonburg
observed redness around her neck. Tr. p. 40.
[6] On July 31, 2019, the State charged Sanders with Level 6 felony domestic
battery. The charging information alleged that Sanders knowingly touched
Vonburg “in a rude, insolent, or angry manner by grabbing her” and that the
offense was committed “in the presence of a child less than 16 years of age.”
Appellant’s App. p. 15. The State also alleged that Sanders knew the child was
present and “might be able to see or hear the offense.” Id.
[7] Sanders’s bench trial commenced on November 7, 2019. Vonburg did not
testify at trial. At Sanders’s request, the trial court continued the trial so that he
could secure the testimony of his defense witnesses. The bench trial concluded
on December 5, 2019.
[8] The trial court found Sanders guilty as charged. Sanders waived his right to a
presentence investigation report, and the trial court proceeded to hold the
sentencing hearing. The court considered the physical nature of the offense as
an aggravating circumstance. Twenty-nine-year-old Sanders was employed full
time and had no prior criminal history. The court considered his lack of
criminal history and that the offense was unlikely to reoccur as mitigating
circumstances. The court found that the mitigating circumstances outweighed
the aggravating circumstance. The trial court ordered Sanders to serve 730 days,
gave him credit for four days he served in jail awaiting trial and four days of
good-time credit, and suspended the remainder of the sentence. The court
Court of Appeals of Indiana | Memorandum Decision 20A-CR-22 | June 24, 2020 Page 3 of 9 ordered Sanders to serve 365 days on probation and to participate in the
Batterer’s Intervention Program. The court indicated that if Sanders completed
the program within 180 days, he could file a petition to terminate his probation.
If Sanders enrolled in the program but was unable to complete it within 180
days, he could petition for non-reporting probation. Sanders now appeals.
I. Sufficient Evidence
[9] Upon review of a challenge to the sufficiency of the evidence to support a
criminal conviction, we respect the fact-finder’s exclusive province to weigh
conflicting evidence. Miller v. State, 106 N.E.3d 1067, 1073 (Ind. Ct. App. 2018)
(citing McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)), trans. denied. We
therefore neither reweigh the evidence nor judge the credibility of the witnesses.
Id. Instead, we consider only the probative evidence and reasonable inferences
supporting the judgment. Id.
[10] To prove that Sanders committed Level 6 felony domestic battery, the State was
required to prove that he knowing touched Vonburg in a rude, insolent, or
angry manner in the presence of a child less than sixteen years of age knowing
that the child was present and might be able to see or hear the offense. Ind.
Code § 35-42-2-1.3(a)(1), (b)(2); Appellant’s App. p. 15. Sanders concedes that
the evidence is sufficient to prove that he touched Vonburg in a rude, insolent,
or angry manner. Appellant’s Br. at 8.
[11] However, he argues that the State failed to prove that Sanders committed the
offense in the presence of a child less than sixteen years of age, knowing that
Court of Appeals of Indiana | Memorandum Decision 20A-CR-22 | June 24, 2020 Page 4 of 9 the child was present and might be able to see or hear the offense. This charged
element elevated the offense from a Class A misdemeanor to a Level 6 felony.
I.C. § 35-42-2-1.3(a)(1), (b)(2).
[12] The State was not required to prove that the child actually saw or heard the
battery, but only “the possibility” that the child “might” see or hear it. True v.
State, 954 N.E.2d 1105, 1111 (Ind. Ct. App. 2011) (citing Boyd v. State, 889
N.E.2d 321, 325 (Ind. Ct. App. 2008), trans. denied); see also Manuel v. State, 971
N.E.2d 1262, 1270 (Ind. Ct. App. 2012) (explaining that “the critical question
in determining whether a child is ‘present’ for purposes of the [domestic battery]
statute is whether a reasonable person would conclude that the child might see
or hear the offense; not whether the child is in the same room as where the
offense is taking place.”).
[13] Sanders battered Vonburg in the front room of the house where Capps, her
four-year-old son, and Vonburg’s four-year-old daughter were trying to sleep.
After reviewing Capps’s and Mulroney’s testimonies, we can reasonably infer
Sanders would have known that the children were present. The State was not
required to prove that either four-year-old child actually saw or heard Sanders
batter Vonburg, but only that it was possible that the children might see or hear
the battery. Because the children were present in the same room where the
battery occurred, the State presented sufficient evidence from which a
reasonable fact finder could conclude that Sanders committed battery in the
presence of a child less than sixteen years of age. For this reason, we affirm
Sanders’s Level 6 felony domestic battery conviction.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-22 | June 24, 2020 Page 5 of 9 II. Inappropriate Sentence
[14] Pursuant to Indiana Appellate Rule 7(B), “[t]he 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.” We must exercise deference to a trial court’s
sentencing decision because Rule 7(B) requires us to give due consideration to
that decision, and we understand and recognize the unique perspective a trial
court brings to its sentencing decisions. Rose v. State, 36 N.E.3d 1055, 1063 (Ind.
Ct. App. 2015). “Such deference should prevail unless overcome by compelling
evidence portraying in a positive light the nature of the offense (such as
accompanied by restraint, regard, and lack of brutality) and the defendant’s
character (such as substantial virtuous traits or persistent examples of good
character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[15] The determination of whether we regard a sentence as inappropriate “turns on
our sense of 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.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008)). The appropriate question is not
whether another sentence is more appropriate, but whether the sentence
imposed is inappropriate. Rose, 36 N.E.3d at 1063.
[16] Although we have the power to review and revise sentences, the principal role
of appellate review should be to attempt to “leaven the outliers, and identify
some guiding principles for trial courts and those charged with improvement of Court of Appeals of Indiana | Memorandum Decision 20A-CR-22 | June 24, 2020 Page 6 of 9 the sentencing statutes, but not to achieve a perceived ‘correct’ result in each
case.” Cardwell, 895 N.E.2d at 1225. Our review under Rule 7(B) should focus
on “the forest—the aggregate sentence—rather than the trees—consecutive or
concurrent, number of counts, or length of the sentence on any individual
count.” Id. And it is the defendant’s burden on appeal to persuade us that the
sentence imposed by the trial court is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
[17] Indiana Code section 35-50-2-7 provides that a person who commits a Level 6
felony “shall be imprisoned for a fixed term of between six (6) months and two
and one-half (2 1/2) years, with the advisory sentence being one (1) year.”
Sanders was sentenced to 730 days, the equivalent of two years. He was given
credit for time served, which totaled eight days with good time credit. The trial
court suspended the remaining 722 days of the sentence and ordered Sanders to
serve 365 days on probation. The trial court also indicated it would terminate
Sanders’s probation if he completed the Batterer’s Intervention Program within
180 days. If Sanders is unable to do so within that time frame, but is enrolled in
the program, the trial court stated it would modify his probation to non-
reporting.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-22 | June 24, 2020 Page 7 of 9 [18] Although Sanders’s sentence exceeds the advisory sentence for his offense, he
received a significant benefit from his alternative placement.1 To determine
whether Sanders’s sentence is inappropriate, we consider all aspects of the penal
consequences imposed by the trial court in sentencing the defendant, including
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.”
Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).
[19] Sanders argues that “[t]here does not appear to be any facts which would
support the sentence beyond the advisory sentence.” Appellant’s Br. at 11. And
Sanders claims his sentence is inappropriate because he is gainfully employed
and has no criminal history.
[20] But Sanders committed a violent battery against Vonburg. During an argument,
as Vonburg tried to stand up, Sanders pushed her back down on the couch. He
then grabbed Vonburg by the throat and held her against a wall. When the
argument continued, Sanders pushed a table at Vonburg and struck her with it.
Vonburg still had red marks on her throat when the officers arrived to
investigate, approximately one hour after the battery.
[21] The trial court fashioned a sentenced aimed at rehabilitating Sanders. If Sanders
complies with the conditions imposed by the trial court, his sentence will be
1 We also observe that “for purposes of Rule 7(B) review, a maximum sentence is not just a sentence of maximum length, but a fully executed sentence of maximum length.” See Jenkins v. State, 909 N.E.2d 1080, 1085–86 (Ind. Ct. App. 2009), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-22 | June 24, 2020 Page 8 of 9 modified to 180 days, the minimum sentence for a Level 6 felony. For all of
these reasons, we conclude that Sanders’s sentence is not inappropriate in light
of the nature of the offense and the character of the offender.
Conclusion [22] The State presented sufficient evidence to prove that Sanders committed Level
6 felony domestic battery. And Sanders’s 730-day sentence with 722 days
suspended and 365 days on probation is not inappropriate in light of the nature
of the offense and the character of the offender.
[23] Affirmed.
Riley, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-22 | June 24, 2020 Page 9 of 9