Chukwuemeka Chidebelu-Eze v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before May 27 2014, 7:23 am
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:
LILABERDIA BATTIES GREGORY F. ZOELLER
Batties & Associates Attorney General of Indiana
Indianapolis, Indiana
ANGELA N. SANCHEZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CHUKWUEMEKA CHIDEBELU-EZE, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1308-CR-720
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Lisa F. Borges, Judge
Cause No. 49G04-1208-FC-60186
May 27, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Chukwuemeka Chidebelu-Eze appeals his convictions for two counts of battery,
one as a Class C felony and one as a Class D felony, following a bench trial. Eze raises
four issues for our review, which we consolidate and restate as the following three issues:
1. Whether the State presented sufficient evidence to support Eze’s
conviction for battery, as a Class C felony;
2. Whether Eze’s two convictions for battery are in violation of
Indiana’s prohibitions against double jeopardy; and
3. Whether Eze’s sentence is inappropriate in light of the nature of the
offenses and his character.
We affirm.
FACTS AND PROCEDURAL HISTORY
In March of 2012, Patrice Anderson met Eze when he became her chiropractor.
Eze and Anderson’s relationship became sexual by early April, but it had ceased being so
sometime in May. On June 10, 2012, Eze asked Anderson to come over to his apartment,
and she did so. Shortly before Anderson arrived, another woman, Karen Cantrell, was at
his apartment. Cantrell was also Eze’s patient and in a “personal” relationship with him.
Transcript at 126. Eze’s minor child was in the apartment at the time Cantrell and
Anderson were present.
When Anderson arrived, Eze asked Cantrell to go upstairs. Upon Eze answering
his door, Anderson noticed that he had a “weird” expression on his face. Id. at 34. Eze
invited Anderson in and told her he was going to get a glass of water, and Anderson
observed him communicating with Cantrell. Anderson said to Eze, “am I stupid or
something?” Id. at 39. Eze then walked “briskly” toward Anderson, grabbed the tops of
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her arms, and began to push her. Id. Anderson freed her right hand and slapped him.
Anderson then told Eze to let her go. In response, Eze put his hands around Anderson’s
neck and choked her. While choking her, he moved her towards a bed in the apartment,
where he “smacked [her] in [her] head multiple times.” Id. at 43.
Eze then “just let go and he walked . . . away.” Id. Anderson was disoriented and
struggled to breathe, and she heard him tell her to “[g]et out.” Id. Anderson attempted to
reach her purse but Eze “grab[bed] the top of [her] shirt” and “pushed [her] out” of the
door to the apartment and onto the ground. Id. at 44-45. Anderson looked up and saw
Eze with her purse and asked for it. Eze then “moved towards [her] and [she] thought he
was just going to throw [the] purse and keys . . . . Instead, he lunged forward and he
head-butted” Anderson. Id. at 47-48. The head-butt left Anderson “disoriented”; it gave
her “blurred” vision; it left her with “an imbalance when walking or trying to walk”; and
caused her to have “difficulty focusing.” Id. at 51. She recalled falling backward from
the blow but the “very next thing” she recalled was “opening [her] eyes” on a sofa across
from Eze’s apartment door. Id. Anderson did not remember getting onto that sofa.
When Anderson tried to stand, she “felt like [she] was free falling.” Id.
Nonetheless, Anderson reached her car. She stayed in the parking lot for about
forty-five minutes before she attempted to drive to her home. En route, she had difficulty
driving. Near the intersection of 86th Street and Meridian, she stopped abruptly, hit her
head on the steering wheel, and “close[d her] eyes” for “a while.” Id. at 59. Eventually,
she called her husband, who took her to St. Vincent Hospital. At the hospital, she was
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diagnosed with a concussion. She continued to experience symptoms from her
concussion over the following week.
On September 4, 2012, the State charged Eze in relevant part with battery, as a
Class C felony, and battery, as a Class D felony. Following a bench trial, the trial court
found Eze guilty of those two charges and sentenced him to an aggregate term of five
years, with two years executed in the Department of Correction, one year in community
corrections, and two years suspended (one year suspended to probation). This appeal
ensued.
DISCUSSION AND DECISION
Issue One: Sufficiency of the Evidence
Eze first argues that the State failed to present sufficient evidence to support his
conviction for battery, as a Class C felony. In particular, Eze asserts that the State failed
to establish that he caused serious bodily injury to Anderson and to disprove his
affirmative defense that the head-butt was an accident. When reviewing a claim of
sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the
witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). We look only to the
probative evidence supporting the judgment and the reasonable inferences that may be
drawn from that evidence to determine whether a reasonable trier of fact could conclude
the defendant was guilty beyond a reasonable doubt. Id. If there is substantial evidence
of probative value to support the conviction, it will not be set aside. Id. To demonstrate
battery, as a Class C felony, the State was required to show that Eze knowingly or
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intentionally touched Anderson in a rude, insolent, or angry manner, and that the
touching resulted in serious bodily injury to Anderson. Ind. Code § 35-42-2-1(a).
The State presented sufficient evidence to demonstrate that Eze caused Anderson
serious bodily injury. “Serious bodily injury” means “bodily injury that . . . causes:
. . . (2) unconsciousness; [or] (3) extreme pain . . . .” I.C. § 35-41-1-25 (2006) (currently
codified at I.C. § 35-31.5-2-292). “Whether bodily injury is ‘serious’ is a question of
degree and, therefore, appropriately reserved for the finder of fact.” Whitlow v. State,
901 N.E.2d 659, 661 (Ind. Ct. App. 2009).
Here, Anderson testified that, immediately after Eze head-butted her, she
momentarily blacked out. This qualifies under the statute as serious bodily injury. I.C. §
35-41-1-25(2); see Ricks v. State, 446 N.E.2d 648, 650-51 (Ind. Ct. App. 1983).
Anderson also testified that she was in pain for more than a week following the head-butt.
This also qualifies. I.C. § 35-41-1-25(3). Insofar as Eze argues that Anderson’s injuries
were actually caused by her striking her head on her steering wheel, Eze’s argument is
simply a request for this court to reweigh the evidence, which we will not do.
The State also presented sufficient evidence to disprove Eze’s argument that the
head-butt was an accident. Eze’s argument on this issue is premised on his own
testimony that he slipped on a rug and accidentally head-butted Anderson. But we are in
no position to credit Eze’s testimony over Anderson’s explicit testimony that there was
“[n]o” possibility “that the head-butt occurred on . . . accident.” Transcript at 121. In
other words, Eze again impermissibly requests this court to reweigh the evidence.
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Accordingly, the State presented sufficient evidence to support Eze’s conviction for
battery, as a Class C felony.
Issue Two: Double Jeopardy
Eze next asserts that his conviction for battery, as a Class C felony, and his
conviction for battery, as a Class D felony, violate Indiana’s prohibitions against double
jeopardy. As our Supreme Court has explained:
In Richardson v. State, 717 N.E.2d 32 (Ind. 1999), this Court concluded
that two or more offenses are the same offense in violation of article 1,
section 14 if, with respect to either the statutory elements of the challenged
crimes or the actual evidence used to obtain convictions, the essential
elements of one challenged offense also establish the essential elements of
another challenged offense. Under the actual evidence test, we examine the
actual evidence presented at trial in order to determine whether each
challenged offense was established by separate and distinct facts. Id. at 53.
To find a double jeopardy violation under this test, we must conclude that
there is “a reasonable possibility that the evidentiary facts used by the fact-
finder to establish the essential elements of one offense may also have been
used to establish the essential elements of a second challenged offense.” Id.
The actual evidence test is applied to all the elements of both offenses. “In
other words . . . the Indiana Double Jeopardy Clause is not violated when
the evidentiary facts establishing the essential elements of one offense also
establish only one or even several, but not all, of the essential elements of a
second offense.” Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002).
Our precedents “instruct that a ‘reasonable possibility’ that the jury
used the same facts to reach two convictions requires substantially more
than a logical possibility.” Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008)
(citing cases). The reasonable possibility standard “fairly implements the
protections of the Indiana Double Jeopardy Clause and also permits
convictions for multiple offenses committed in a protracted criminal
episode when the case is prosecuted in a manner that insures that multiple
guilty verdicts are not based on the same evidentiary facts.” Richardson,
717 N.E.2d at 53 n.46. The existence of a “‘reasonable possibility’ turns on
a practical assessment of whether the [fact-finder] may have latched on to
exactly the same facts for both convictions.” Lee, 892 N.E.2d at 1236. We
evaluate the evidence from the [fact-finder’s] perspective and may consider
the charging information, jury instructions, and arguments of counsel. Id.
at 1234.
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Garrett v. State, 992 N.E.2d 710, 719-20 (Ind. 2013) (some alterations and omissions
original).
We agree with the State that Eze’s argument on this issue is too lacking to allow
for judicial review. As the State explains:
Though Defendant cites legal authority explaining the actual evidence test
and quotes the charging information for each battery charge in his
argument, Defendant provides no argument explaining why his two
convictions violate the actual evidence test under the specific facts and
circumstances of this case. In fact, in his argument section, he merely
copies the charging information and then recites the elements of [C]lass C
felony battery without any further argument or explanation. In his
summary, he makes conclusory assertions that his convictions violate
double jeopardy because they are based on the “same factual evidence” or
the “same factual allegations,” but again he provides no cogent reasoning
and does not address the actual evidence present at trial, the arguments of
counsel, the trial court’s statements in rendering a verdict, or any other
relevant information about this case.
Appellee’s Br. at 19 (citations omitted). Thus, Eze has not preserved this issue for
appellate review, and this court will not make Eze’s arguments for him. See, e.g., M.K.
v. Ind. Dep’t of Child Servs. (In re A.G.), 6 N.E.3d 952 (Ind. Ct. App. 2014).
Accordingly, we cannot say that Eze’s two convictions for battery violate Indiana’s
prohibitions against double jeopardy.
Issue Three: Appellate Rule 7(B)
Finally, Eze asserts that his sentence is inappropriate.1 Article VII, Sections 4 and
6 of the Indiana Constitution “authorize[] independent appellate review and revision of a
sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App.
1
Although Eze’s argument on appeal conflates our review under Appellate Rule 7(B) with our
review of his sentence for an abuse of discretion, it is clear that Eze intended to argue only that his
sentence is inappropriate under Rule 7(B).
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2007) (alteration original). This appellate authority is implemented through Indiana
Appellate Rule 7(B). Id. Revision of a sentence under Appellate Rule 7(B) requires the
appellant to demonstrate that his sentence is inappropriate in light of the nature of his
offenses and his character. See App. R. 7(B); Rutherford v. State, 866 N.E.2d 867, 873
(Ind. Ct. App. 2007). We assess the trial court’s recognition or non-recognition of
aggravators and mitigators as an initial guide to determining whether the sentence
imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006).
However, “a defendant must persuade the appellate court that his or her sentence has met
th[e] inappropriateness standard of review.” Roush, 875 N.E.2d at 812 (alteration
original).
Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should receive
considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224 (Ind. 2008).
The principal role of appellate review is to attempt to “leaven the outliers.” Id. at 1225.
Whether we regard a sentence as inappropriate at the end of the day turns on “our sense
of the culpability of the defendant, the severity of the crime, the damage done to others,
and myriad other facts that come to light in a given case.” Id. at 1224.
On appeal, Eze argues that his sentence is inappropriate because his aggregate
term of five years is one year above the advisory sentence for a Class C felony and,
although he has had extensive contacts with the criminal justice system, those “contacts
did not result in convictions for felonies[] and dealt mainly with driving offenses, as well
as two possession of marijuana charges.” Appellant’s Br. at 24-25; see also I.C. § 35-50-
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2-6(a) (defining the advisory sentence for a Class C felony as four years with a
sentencing range between two and eight years). We cannot agree with Eze’s analysis.
The trial court entered a carefully circumscribed sentence that is not inappropriate.
Again, the court ordered Eze to serve five years as follows: two years in the Department
of Correction, one year in community corrections, and two years suspended, one of which
is to be served on probation. Thus, while the trial court ordered Eze to serve five years,
his initial executed term is two years below the advisory sentence for a Class C felony,
his full executed term is one year below the advisory sentence, and his combined
executed and probationary period is equivalent to the advisory sentence.
Moreover, the nature of the offenses and Eze’s character do not justify declaring
the court’s careful sentence an “outlier[].” Cardwell, 895 N.E.2d at 1225. Eze repeatedly
struck Anderson before he head-butted her, which caused her to momentarily lose
consciousness, be treated at a hospital, and suffer a week of ongoing pain. And Eze has a
significant criminal history over the course of about fifteen years. He has been arrested
twenty times and convicted of six misdemeanors. Eze’s convictions include several
crimes of dishonesty and marijuana offenses, as well as a hit and run. He has twice had
his probation revoked and, at the time he was sentenced for the instant offenses, had an
active warrant for failing to appear on a notice of probation violation in another case. We
cannot say that the nature of the offenses or Eze’s character render the court’s careful
sentence inappropriate. We affirm Eze’s convictions and sentence.
Affirmed.
VAIDIK, C.J., and BROWN, J., concur.
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