Nicole Means v. State of Indiana ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited FILED
before any court except for the purpose Nov 27 2012, 8:53 am
of establishing the defense of res
judicata, collateral estoppel, or the law CLERK
of the supreme court,
of the case. court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JANE H. CONLEY GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
IAN MCLEAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
NICOLE MEANS, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1205-CR-391
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Amy Barbar, Judge
Cause No. 49G02-1107-FC-50196
November 27, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Nicole Means appeals her conviction and sentence for Class B felony aggravated
battery. We affirm.
Issues
Means raises two issues, which we restate as:
I. whether there is sufficient evidence to support her
conviction; and
II. whether her sentence is inappropriate.
Facts
For an extended period of time, Means and Ebony Bennett both dated Joseph
Haywood. On July 6, 2011, Bennett was at her home in Indianapolis with her cousin and
brother when she began calling Means from her cousin’s cellphone. Eventually, Means
drove to Bennett’s home, pulled into the driveway, announced her arrival, and started to
get out of the car. Bennett, who had been holding a golf club, threw the golf club to the
ground while Means was in the driveway. Means then got back in the car and backed out
of the driveway. Means pointed the car at an angle toward Bennett, who was standing on
the sidewalk, accelerated, ran over Bennett’s leg, and drove away. Bennett’s injuries
required two surgeries, a two-week hospital stay, and physical therapy.
On July 15, 2011, the State charged Means with Class C felony battery and later
with Class B felony aggravated battery. At the beginning of the April 4, 2012 bench trial,
the trial court granted the State’s motion to dismiss the Class C felony battery charge.
After the trial, the trial court found Means guilty of Class B felony aggravated battery.
2
In sentencing Means, the trial court considered her juvenile adjudication for
battery as an aggravator. As mitigators, the trial court considered the fact that this was
Means’s first adult conviction, that she was remorseful, and that long-term imprisonment
would be a hardship on Means’s daughter. The court concluded that the mitigators
outweighed the aggravators and sentenced Means to six years, with four years to be
served in the Department of Correction (“DOC”) and two years to be served in a
community corrections program. Means now appeals.
Analysis
I. Sufficiency
Means argues that there is not sufficient evidence to support her conviction. In
reviewing the sufficiency of the evidence, we do not reweigh the evidence or judge the
credibility of the witnesses, and we respect a fact-finder’s exclusive province to weigh
conflicting evidence. Joslyn v. State, 942 N.E.2d 809, 811 (Ind. 2011). We consider
only the probative evidence and reasonable inferences supporting the verdict, and we will
affirm if the probative evidence and reasonable inferences drawn from the evidence could
have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable
doubt. Id.To convict Means of aggravated battery, the State was required to prove that she
knowingly or intentionally inflicted injury on Bennett that caused protracted loss or
impairment of the function of her leg. See Ind. Code § 35-42-2-1.5. “A person engages
in conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious objective
to do so.” I.C. § 35-41-2-2(a). “A person engages in conduct ‘knowingly’ if, when he
3
engages in the conduct, he is aware of a high probability that he is doing so.” I.C. § 35-
41-2-2(b).
Means argues that the evidence is insufficient to establish that she acted
knowingly or intentionally. In support of her argument, Means points to her testimony
that, when she saw Bennett approaching with the golf club as she was backing out of the
driveway, she panicked, “hit the gas,” and ended up on the grass. Tr. p. 105. She
suggests that the incident happened quickly and that she was using her car to escape a
frightening situation.
This argument is largely a request to reweigh the evidence, and we decline to do
so. The evidence most favorable to the conviction shows that Means had previously
threatened Bennett, had sent Bennett pictures of Haywood and Means together, and had
called Bennett’s phone and left “crazy” messages. The evidence also showed that, on the
day of the incident, Bennett had repeatedly called Means’s cell phone and the two
exchanged vulgarities and insults. After the calls, Means drove twenty to thirty minutes
from her house to Bennett’s house. Means then pulled into Bennett’s driveway, started to
get out of the car, announced to Bennett that she was there, got back in the car, backed
out of the driveway, pointed the car at an unusual angle toward Bennett, who was
standing on the sidewalk, accelerated, hit Bennett, and drove away after she ran over
Bennett’s leg. This evidence is sufficient to establish that Means knowingly injured
Bennett.
II. Sentence
4
Means also argues that her six-year sentence is inappropriate and asks us to allow
her to serve her sentence in a community corrections program. Indiana Appellate Rule
7(B) permits us to revise a sentence authorized by statute if, after due consideration of the
trial court’s decision, we find that the sentence is inappropriate in light of the nature of
the offenses and the character of the offender. Although Rule 7(B) does not require us to
be “extremely” deferential to a trial court’s sentencing decision, we still must give due
consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App.
2007). We also understand and recognize the unique perspective a trial court brings to its
sentencing decisions. Id. “Additionally, a defendant bears the burden of persuading the
appellate court that his or her sentence is inappropriate.” Id.The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,
and identify some guiding principles for trial courts and those charged with improvement
of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “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. Whether a sentence is
inappropriate ultimately turns on 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. Id. at 1224. When reviewing the appropriateness of a sentence under Rule 7(B),
we may consider all aspects of the penal consequences imposed by the trial court in
sentencing the defendant, including whether a portion of the sentence was suspended.
Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).
5
Means was sentenced to six years, the minimum sentence for a Class B felony,
with four years to be served in the DOC and two years to be served in a community
corrections program. Means asserts that her character warrants modification of her
sentence. Indeed, Means was close to earning her bachelor’s degree in psychology and
has an eight-year-old daughter. As for her criminal history, however, although she does
not have any adult convictions, she does have a juvenile delinquency adjudication for
battery, which is similar in nature to this offense. Further, Means does not address the
nature of this offense, which involved her driving to Bennett’s house, driving over
Bennett’s leg with a car, and leaving the scene. Based on the nature of the offense and
character of the offender, we cannot conclude that Means’s sentence is inappropriate.
Conclusion
There is sufficient evidence to support the aggravated battery conviction, and
Means has not established that her sentence is inappropriate. We affirm.
Affirmed.
VAIDIK, J., and MATHIAS, J., concur.
6