Lisiate U. Tavake v. State of Indiana ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jun 05 2019, 8:51 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark Small Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lisiate U. Tavake, June 5, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2735
v. Appeal from the Montgomery
State of Indiana, Circuit Court
Appellee-Plaintiff. The Honorable Harry A. Siamas,
Judge
Trial Court Cause No.
54C01-1804-F5-999
Mathias, Judge.
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[1] Lisiate U. Tavake (“Tavake”) was convicted in the Montgomery Circuit Court
of Level 6 felony battery resulting in moderate bodily injury. Tavake now
appeals arguing that the evidence was insufficient to support his conviction.
[2] We affirm.
Facts and Procedural History
[3] On April 9, 2018, Tavake and Dakota Mills (“Mills”) were inmates in the “G”
pod housing unit at the Montgomery County Jail. The night of the incident, the
pod held 17 inmates. Each inmate has a mat or pallet on his bed on which to
sleep. However, Mills had put his mat on the floor in order to help him sleep
better, which he had previously done multiple times.
[4] Mills had no disagreements or conflicts with Tavake and had not
communicated with Tavake all morning besides asking Tavake for help to
better understand the Bible. Around 2:20 a.m., Mills walked around the pod for
a few minutes because he said he “was coming off of drugs . . . and [] did not
feel well at the time.” Tr. p. 52. No one in the pod was awake, and after
walking around for a few minutes, Mills returned to his mat on the floor to
sleep.
[5] Without warning, Tavake punched Mills in the head and kicked him in the
chest and face. Mills screamed, which Cody Swick (“Deputy Swick”), jail
deputy at the Montgomery County Sheriff’s Department, heard and described
the noise coming from “G” pod as “loud screaming or screech, sound of
distress.” Id. at 79. After striking Mills over 20 times, Tavake told Mills to “get
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on the button.”1 Id. at 54. Mills pushed the button, and Deputy Swick
responded. Deputy Swick observed that Mills was heavily breathing, bleeding,
bruised, frightened, and “obviously beaten,” so Mills was removed from the
pod. Id. at 80.
[6] Deputy Swick examined Mills and reported that Mills’s ear was purple, with a
large cut behind it. Mills also had lumps on the back of his head. Mills
identified Tavake as the one responsible for his injuries. Id. at 52.
Approximately ten minutes after the incident, Mills told Deputy Swick he was
punched four times on the left side of his head. Id. at 64.
[7] After taking Mills out of the pod to go see the county jail nurse, Deputy Swick
returned to the pod and examined Tavake’s hands. Deputy Swick described
Tavake’s hands as red, swollen, and blood-smeared. Deputy Swick also noticed
a bloodied towel near Tavake’s bed. Id. at 82–83. After looking at Tavake’s
hands and taking photographs, jail personnel placed Tavake in handcuffs. The
attack was captured by the jail’s infrared surveillance camera system. Captain
Lonnie Jones (“Captain Jones”) of the Montgomery County Sheriff’s
Department was the jail commander and testified he was familiar with both the
video surveillance system in the jail and with Tavake. Captain Jones identified
the man in the video hitting and kicking Mills as Tavake. Id. at 92.
1
“Get on the button” refers to when an inmate needs to communicate to the jail staff that he needs to be
removed from the pod.
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[8] Mills’s injuries were photographed, and the photographs show that his mouth
was bloody; his left ear was badly bruised and cut; and he had a few grape-sized
bumps on the back of his head. Mills also reported his pain level was a seven
out of ten, with ten being the highest. Id. at 54–58, 72–73, 80–83, 102; Ex. Vol.,
State’s Exs. 2A–2J. Shortly thereafter, Mills was transported to the local
hospital for treatment, and the treating emergency room physician, Dr. Ryan
Weakley (“Dr. Weakley”), determined that Mills had sustained multiple
contusions, scalp hematomas, shoulder strain, and chest contusions, but that he
had no fractures. Tr. pp. 100–05; Ex. Vol., State’s Exs. 4–5. Dr. Weakley
testified in his deposition that Mills rated his pain as seven out of ten on a zero
out of ten pain scale and described that level as being substantial pain. Tr. pp.
100–102. Mills stayed in the emergency room for a little over an hour and
received ice packs to be applied to the back of his head and the left side of his
face. He was discharged with a recommendation for over-the-counter pain
control medication. Id. at 109-10.
[9] On April 13, 2018, the State charged Tavake with Level 6 felony battery
resulting in moderate bodily injury.2 A one-day jury trial commenced on
November 13, 2018. At trial, Tavake argued that Mills’s description of his
injuries was not consistent with what he had told Deputy Swick at the jail
shortly after the incident and the video did not clearly show that Tavake was
2
Tavake was charged with battery as a Level 5 felony (Count 1) and battery as a Level 6 felony (Count 2).
Appellant’s App. Vol. 2, p. 11. On November 5, 2018, the State sought to dismiss Count 1, and the State’s
motion was granted. Id. at 6–7.
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the person who attacked Mills in the pod. Tavake was found guilty as charged.
On November 13, 2018, the trial court sentenced Tavake to two years executed
in the Indiana Department of Correction with no days credit for time served.
Tavake now appeals.
Discussion and Decision
[10] Tavake contends that the evidence is insufficient to sustain his conviction.
When reviewing a claim of insufficient evidence to sustain a conviction, we
consider only the probative evidence and reasonable inferences supporting the
verdict. Jackson v. State, 50 N.E.3d 767, 770 (Ind. 2016). In this case, the jury
was the fact-finder. It is the fact-finder’s role, not ours, to assess witness
credibility and weigh the evidence to determine whether it is sufficient to
support a conviction. Id. We will affirm the conviction unless no reasonable
fact-finder could have found the elements of the crime proven beyond a
reasonable doubt. Id. It is therefore not necessary that the evidence overcome
every reasonable hypothesis of innocence; rather, the evidence is sufficient if an
inference may reasonably be drawn from it to support the verdict. Drane v. State,
867 N.E.2d 144, 147 (Ind. 2007).
[11] At the time of Tavake’s Level 6 felony battery resulting in moderate bodily
injury conviction, the State had to show that Tavake: (1) knowingly or
intentionally; (2) touched Dakota Mills; (3) in a rude, insolent, or angry
manner; (4) which resulted in moderate bodily injury to Mills. Ind. Code § 35-
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42-2-1(e)(1). Tavake argues that there was insufficient evidence to support the
conclusion that he was the person who attacked Mills. We disagree.
[12] Mills testified that Tavake struck and kicked him repeatedly about the head and
body on April 9, 2018. Tr. pp. 52–53. Mills also testified that as a result of
Tavake’s actions, he sustained injuries to the mouth, ear, and bumps on the
back of his head and was in great pain. Id. at 55. Additionally, Deputy Swick
testified that he heard loud screaming and sounds of distress coming from “G”
pod where Mills and Tavake were housed and described Mills as “frightened
and obviously beaten.” Id. at 80. Further, Deputy Swick observed blood on
Tavake’s hand and a bloodied towel near Tavake’s bed. Id. at 85. Moreover,
Captain Jones identified Tavake as the person on the video surveillance system
hitting and kicking Mills, who was sleeping on his mat on the floor. Id. at 93.
[13] Tavake argues that the video of the incident was grainy and it was not clear that
Tavake was the one hitting and kicking Mills. Tavake further argues that the
photograph of his hands that was admitted at trial does not show any blood or
visible injuries on them. Additionally, Tavake claims Mills’s testimony is
incredible because Mills changed his statement about how many times he was
hit and kicked.
[14] Mills unequivocally testified that Tavake attacked him. Captain Jones identified
Tavake as the person who attacked Mills in the infrared video that was
admitted at trial. Tavake’s argument to the contrary is nothing more than a
request for us to reweigh the evidence on appeal, which we will not do.
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Conclusion
[15] Based on the facts and circumstances before us, the evidence presented to the
jury was sufficient to sustain Tavake’s conviction. Accordingly, we affirm his
Level 6 felony battery conviction.
May, J., and Brown, J., concur.
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