Kenneth Wayne Ellis v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 17 2019, 8:52 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ellen M. O’Connor Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Samantha M. Sumcad
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kenneth Wayne Ellis, May 17, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1996
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Grant W.
Appellee-Plaintiff. Hawkins, Judge
The Honorable Peggy Ryan Hart,
Magistrate
Trial Court Cause No.
49G05-1702-F5-7406
Barnes, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1996 | May 17, 2019 Page 1 of 9
Case Summary
[1] Kenneth Wayne Ellis appeals his convictions by bench trial of battery by means
1
of a deadly weapon as a Level 5 felony and battery resulting in bodily injury as
2
a Class A misdemeanor. We affirm.
Issue
[2] Ellis raises one issue, which we restate as whether there was sufficient evidence
to support his convictions.
Facts and Procedural History
[3] Sabrina Clenna and Paulette Clenna are sisters-in-law. Sabrina is married to
Paulette’s brother. In 2017, Paulette was dating and living with Ellis in an
apartment located on the east side of Indianapolis approximately one and one-
half blocks from Sabrina’s apartment.
[4] On the early afternoon of February 22, 2017, Sabrina and Paulette were at
Sabrina’s apartment, watching television and “[d]rinking and talking and
having fun.” Tr. p. 23. They consumed alcohol from the early afternoon until
eight o’clock p.m. but began to drink more heavily thereafter. Around eleven
o’clock p.m., Paulette broke the antennae for the television. The two then left
1
Ind. Code §§ 35-42-2-1(c)(1), –(g)(2) (2016).
2
I.C. §§ 35-42-2-1(c)(1), –(d)(1).
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Sabrina’s apartment and walked to Paulette’s apartment because “[Paulette]
said she had an extra [antennae] at her house.” Id. at 26.
[5] Ellis was in the apartment when Sabrina and Paulette arrived. Once at the
apartment, Paulette continued to consume alcohol, but Sabrina stopped
drinking. At some point, Ellis left the apartment and asked Sabrina to “keep an
eye on Paulette because Paulette was intoxicated and she gets a little wild when
she drinks.” Id. at 28.
[6] While Ellis was gone, Sabrina realized that she had lost her cell phone. She
wanted to call her husband to let him know she was at Paulette’s apartment.
Sabrina left the apartment and “looked all over” the building for her phone. Id.
at 29. She “figured [she] must have dropped it somewhere.” Id.
[7] Her search ended in the laundry room located in the basement of the building.
There she found her phone and Ellis. Ellis then “tried to come on to” Sabrina.
Id. He told her that he liked her and that he wanted to be with her. Sabrina
rebuffed his advances and told him, “[T]hat’s not the type of person I am.” Id.
Though sisters-in-law, Sabrina saw Paulette as a biological sister.
[8] Sabrina left the laundry room, returned to Paulette’s apartment, and told
Paulette what had happened. Ellis entered the apartment a short time later. He
first denied that he had made advances toward Sabrina, but, eventually, he
confessed. Ellis and Paulette began to argue. Sabrina could not recall what
happened immediately after the couple began to argue, however, she believed
that at some point Ellis pushed her. She recalled fighting with Ellis,
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specifically, that he was “swinging at me and I was swinging back.” Id. at 31.
Sabrina did recall “falling on the bed and kicking . . . Ellis off of me. . . . I
kicked him backwards and we both fell to the floor.” Id. While Sabrina was on
the floor, Ellis, who was wearing shoes, stomped on her face twice. Sabrina
rolled under the bed in an attempt to escape from Ellis and then managed to
stand. At that point, she saw Ellis standing before her holding a machete that
had blood on it. Sabrina noticed that neither Ellis nor Paulette bore any cuts.
Sabrina then went to the bathroom to examine herself. Her face was “just
bloody” and was “starting to be puffy and there was just blood springing from
everywhere.” Id. at 35. She did not see any cuts to her face. She did not recall
being struck with the machete. However, she had a fleeting memory of Paulette
hitting her in the face with a broomstick after she emerged from the bathroom.
[9] Sabrina, in pain and now barefoot, left the apartment and walked back to her
own apartment. It was after midnight and into the early hours of the next
morning. As she walked to her apartment in the dark, she noticed a pain in her
foot that felt as if her foot had been broken. She was familiar with the feeling
because several years prior, she had broken her foot. The pain in her foot was
so intense it took her ten to twenty minutes to ascend the steps to her
apartment.
[10] When Sabrina reached her apartment, her husband immediately called 911.
After providing a statement to the responding Indianapolis Metropolitan Police
Department (IMPD) officers, Sabrina was taken to the hospital where it was
discovered that she had a gash on her forehead about one inch from her eye.
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Medical personnel informed Sabrina that, if the cut to her forehead had been an
inch closer to her eye, she would have “been blind or lost [her] eyeball.” Id. at
41. She also was told that her foot had been cut through the bone. The gash on
her forehead required “a lot of stitches.” Id. at 42. The cut to her foot required
surgery to reseal the bone.
[11] IMPD detective Christopher Winter went to the hospital to interview Sabrina
and show her a “photo array” containing Ellis’s photograph. Id. at 73. He met
with Sabrina before she received treatment and noticed that she was “lying on
her back on a gurney with a neck brace on[,] bleeding from multiple spots on
her body.” Id. at 74. Sabrina was able to identify Ellis from the photo array.
[12] Meanwhile, IMPD officers went to Paulette’s apartment to investigate. Ellis
was found lying on the floor underneath a blanket. Officers placed him in
handcuffs. Officer Timothy Clark, who worked as an IMPD evidence
technician, arrived at the apartment. He took photographs of the crime scene
and of Ellis, and he recovered the machete. He observed broken glass on the
floor, blood on the bed sheets, and blood stains on the white boxer shorts that
Ellis wore. A broom was depicted in one of the photographs. Ellis was taken
into custody.
[13] On February 24, 2017, the State charged Ellis with Count I battery by means of
a deadly weapon as a Level 5 felony, Count II battery resulting in serious bodily
injury as a Level 5 felony, and Count III battery resulting in bodily injury, a
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Class A misdemeanor. On October 2, 2017, the State filed an habitual offender
3
enhancement.
[14] On May 10, 2018, Ellis waived his right to trial by jury and proceeded to a
bench trial. He was found guilty as charged. On July 24, 2018, he pleaded
guilty to being an habitual offender. The trial court merged count II with count
I and imposed a sentence. This appeal followed.
Discussion and Decision
[15] Ellis argues that there was insufficient evidence to support his convictions
because Sabrina was “insufficiently sober to recall how she sustained her
injuries” and only “speculated” that her injuries were caused by Ellis’s use of a
machete. Appellant’s Br. p. 8. He claims that Sabrina’s “spotty memory, due
to her level of intoxication, points to an absence of evidence rather than a
request to reweigh the evidence or an attack on the weight of her testimony.”
Id. at 11.
[16] In reviewing the sufficiency of the evidence, we consider only the evidence and
reasonable inferences most favorable to the conviction, neither reweighing the
evidence nor reassessing witness credibility. Griffith v. State, 59 N.E.3d 947, 958
(Ind. 2016). We will affirm the judgment unless no reasonable factfinder could
find the defendant guilty. Id. It is not necessary that the evidence overcome
3
Ind. Code § 35-50-2-8(a) (2015).
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every reasonable hypothesis of innocence; rather, the evidence is sufficient if an
inference may reasonably be drawn from it to support the conviction. Drane v.
State, 867 N.E.2d 144, 147 (Ind. 2007). “A verdict may be sustained based on
circumstantial evidence alone if that circumstantial evidence supports a
reasonable inference of guilt.” Maul v. State, 731 N.E.2d 438, 439 (Ind. 2000).
[17] The Indiana Code provides that battery is a Level 5 felony when it is committed
with “a deadly weapon.” Ind. Code § 35-42-2-1(g)(2). The Indiana Code
further defines “deadly weapon” to mean, among other things, any “material
that in the manner it: (A) is used; (B) could ordinarily be used; or (C) is
intended to be used; is readily capable of causing serious bodily injury.” Ind.
Code § 35-31.5-2-86(a)(2) (2012). And “serious bodily injury” is defined in
relevant part as bodily injury that causes “extreme pain.” Ind. Code § 35-31.5-
2-292(3) (2012). Battery is a Class A misdemeanor if it results in bodily injury.
I.C. §§ 35-42-2-1(c)1, –(d)(1). “Bodily injury” is defined as any impairment of
physical condition, including physical pain. Ind. Code § 35-31.5-2-29 (2012).
[18] Here, the evidence established that Sabrina had been drinking heavily but
stopped drinking after arriving at Paulette’s apartment. When she entered
Paulette’s apartment, she had no cuts or gashes. Sabrina clearly recalled Ellis
making a pass at her and then arguing with Paulette. Sabrina also recalled
physically fighting with Ellis in an effort to get him off of her, falling to the
floor, and enduring two stomps to the face by Ellis. Her next memory was of
Ellis standing before her with a bloody machete in his hand. She recalled that
both Ellis and Paulette were unharmed. An evidence technician found a
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machete at the scene of the crime and observed that Ellis had blood stains on
the boxer shorts he wore.
[19] Sabrina’s injuries were so severe that she required stitches for her forehead and
surgery to reseal the bone in her foot. She remained in the hospital for three
days and required twelve follow-up medical appointments. Sabrina testified
that due to the injuries, she suffers from frequent migraines and cannot stand on
her foot for longer than three hours at a time without suffering throbbing pain
and swelling.
[20] We acknowledge Sabrina does not precisely remember being cut on either her
forehead or her foot and that she was made aware of the extent of her injuries
by hospital personnel. Nevertheless, the evidence supporting the verdict gives
rise to a reasonable inference that Ellis cut her forehead and foot with the
machete. In sum, the evidence and reasonable inferences arising therefrom
establish Ellis committed battery by means of a deadly weapon and battery
resulting in bodily injury.
[21] Ellis further argues that the evidence does not support his convictions because
“[Sabrina] did not know how or why [Ellis] had a machete in his hands;” when
she examined herself in the bathroom mirror, she did not detect a cut on her
face; “Paulette . . . smacked her in the forehead with a broomstick afterwards;”
“[Sabrina’s] right foot hurt, but she was in a room scattered with broken glass;”
“[s]he walked home barefoot;” and “[t]he police did not examine the machete
for blood.” Appellant’s Br. p. 9. We regard these arguments as a request to
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weigh the evidence and assess witness credibility, which we cannot do. See
Sallee v. State, 51 N.E.3d 130, 134-35 (Ind. 2016) (circumstantial evidence
sufficient to sustain convictions for murder).
Conclusion
[22] We find the State presented sufficient evidence to support Ellis’s convictions for
battery by means of a deadly weapon and battery resulting in bodily injury.
The judgment of the trial court is affirmed.
[23] Affirmed.
Pyle, J., and Altice, J., concur.
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