Matthew Duke Coonce v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 20 2017, 9:03 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
James D. Crum Curtis T. Hill, Jr.
Coots, Henke & Wheeler, P.C Attorney General of Indiana
Carmel, Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Matthew Duke Coonce, June 20, 2017
Appellant-Defendant, Court of Appeals Case No.
29A02-1609-CR-2054
v. Appeal from the
Hamilton Superior Court
State of Indiana, The Honorable Steven R. Nation
Appellee-Plaintiff. Trial Court Cause No.
29D01-1507-F2-6625
Kirsch, Judge.
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[1] Matthew Duke Coonce appeals his six-year sentence for battery causing serious
bodily injury,1 a Level 5 felony.
[2] We affirm.
Facts and Procedural History
The facts relevant to the charges for which Coonce was convicted and
sentenced2 show that on July 27, 2015, Brian Cowell, Austin Ellis, Coonce, and
several other people were at Cowell’s parents’ home where Cowell was living at
the time. His parents were out of town. On the evening before, Cowell and
Coonce had taken Cowell’s parents’ car to buy drugs. While Cowell was in the
dealer’s home, Coonce left with the car. When Cowell returned home at
around 7:30 p.m. on the next day, July 27th, he found Coonce had returned
with the car. Despite Coonce’s wish to remain, Cowell insisted that he leave.
Cowell then went upstairs, while Ellis, Kyle Wiles, Coonce, and Coonce’s
friends remained downstairs.
[3] The facts concerning Coonce’s altercation with Ellis are significant because
they offer the background for the altercation between Coonce and Cowell. Ellis
went into the kitchen to reheat some leftover food, and Coonce followed him.
Ellis and Coonce talked, and Ellis asked Coonce twice about when Coonce’s
1
See Ind. Code § 35-42-2-1(f)(1).
2
Coonce does not appeal his sentences for other convictions that were each to be served concurrent with this
six-year sentence.
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ride was coming to pick him up. When Ellis finished preparing his food, he
turned toward Coonce, and Coonce struck Ellis in the face, breaking his nose.
Ellis was shocked and tried to ask Coonce what he was doing, but Coonce
proceeded to hit Ellis in the face again. Ellis put up his hands to stop the blows
from landing on his face and head, but Coonce hit him several more times in
the face, causing injuries to Ellis’s forehead, cheek, and eye area. Ellis’s blood
dripped on the kitchen floor, counters, stove, and appliances. Coonce stood
between the refrigerator and the counter, blocking Ellis from leaving the
kitchen.
[4] Cowell heard Ellis’s screams and immediately rushed downstairs, where he
found Ellis against the cabinets on the kitchen floor in a defensive position.
Cowell attempted to stop Coonce by engaging him in “hand-to-hand combat.”
Tr. v1 at 121, 188. Cowell hit Coonce in the face, and Coonce responded by
blocking Cowell’s exit from the kitchen and hitting him repeatedly. Coonce hit
Cowell in the face, in his ear, in his throat, and in the side of his neck in rapid
succession. Cowell was knocked down on the kitchen floor, stunned and
bleeding.
[5] Meanwhile, Ellis escaped into the hallway, where he lost consciousness. When
Ellis awoke, Coonce was telling a female whom he had brought to the house to
tie up Ellis with large zip ties that they had brought with them. Coonce told
Ellis, “If you move or make any sounds, I’ll cut you.” Id. at 188. The female
then had Ellis fasten the zip ties around his own wrists and ankles. While Ellis
was being tied up, Cowell called 911 and then dropped the phone so that
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emergency services could locate the house. In the family room, Cowell
reengaged in combat with Coonce and his friends to “buy Ellis some time to get
him free,” and thus allowed Ellis to escape for a short time before he lost
consciousness again. Id. at 123-24, 189.
[6] Coonce beat Cowell, inflicting multiple blows to Cowell’s head and face until
he eventually knocked Cowell unconscious. Cowell sustained very painful
injuries to his hand, forehead, jaw, and ear. One of the bruises lasted for
several months after the beating. The beating caused blood to drip on the
family room carpet and in the entryway. When Ellis regained consciousness,
the house was quiet, so he quickly went upstairs, barricaded himself in the
bathroom, removed the zip ties from his hands, and called 911.
[7] When the police responded to the scene, they found the garage door of the
house open and a large flat screen television in the middle of the garage. Inside
the house, the officers found Wiles in the living room area holding a backpack
that contained photography lenses and bags of jewelry, and they arrested Wiles
immediately. The officers found Cowell on the family room floor,
unconscious, in a fetal position, and convulsing. EMTs assisted Cowell in
regaining consciousness. The officers then found Ellis locked in the bathroom
and assisted him with his injuries. They recovered the bloody zip ties used on
Ellis from the sink. Ellis and Cowell were both transported to Riverview
Hospital for treatment of their injuries.
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[8] When Cowell’s parents returned home, they discovered many items missing
including their Chevrolet Equinox, which was later found at the Hamilton
Town Center and returned to them. It was extensively damaged, with the
OnStar system removed, the interior of the vehicle slashed and trashed, the
speakers damaged, and the windshield shattered. The damages to the car
amounted to approximately $16,000. The car had a false license plate that was
not registered to it. A package containing zip ties that were consistent with
those used to tie up Ellis was also found inside the car.
[9] Wiles, Ellis, and Cowell were interviewed at the police department, and Wiles
provided the officers with Coonce’s phone number. The police telephoned
Coonce, and he denied stealing anything from Cowell, accused the men of
raping him, admitted that he “beat that fucker dude’s ass,” threatened that
somebody would kill “those motherfuckers” because they are “fucking with the
wrong person,” and said that he would come talk to the police. Tr. v1 at. 222,
226; St. Ex. 88A. Coonce never met with the police, and Wiles later provided
the police with specific information about Coonce’s whereabouts. The police
set up surveillance of the semi-abandoned property where Coonce was located
and obtained an arrest warrant for Coonce. The U.S. Marshal Service had to
extricate Coonce from that property. Coonce was arrested and interviewed, at
which time he again claimed he was “sexually molested,” admitted beating
Cowell, and claimed he never took anything from the house. Tr. v2 at 7; St. Ex.
89A.
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[10] Coonce was arrested and charged on July 31 with aggravated battery, a Level 3
felony; battery, a Level 5 felony; criminal confinement, a Level 3 felony;
battery, a Class A misdemeanor; criminal confinement, a Level 5 felony; and
auto theft, a Level 6 felony. After a jury trial, Coonce was found guilty of Level
5 felony battery, Class A misdemeanor battery, Level 6 felony criminal
confinement as a lesser included offense of Level 5 felony criminal
confinement, and Level 6 felony auto theft.
[11] Coonce was sentenced to concurrent terms of six years for the Level 5 felony
battery, one year for the Class A misdemeanor battery, two and one-half years
for the Level 6 felony criminal confinement, and two and one-half years for the
Level 6 felony auto theft, all to be served concurrently, resulting in a total
sentence of six years, to run consecutive to a sentence in Marion County.
Coonce appeals only the six-year sentence for Level 5 felony battery on Cowell.
Discussion and Decision
[12] Sentencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal only for an abuse of discretion. Guzman v. State, 985
N.E.2d 1125, 1131 (Ind. Ct. App. 2013). “An abuse of discretion occurs if the
decision is clearly against the logic and effect of the facts and circumstances
before the court, or the reasonable, probable, and actual deductions to be drawn
therefrom.” Id.
[13] When imposing a sentence in a felony case, the trial court must provide a
reasonably detailed sentencing statement explaining its reason for imposing the
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sentence. Id. The defendant bears the burden of persuading the appellate court
that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006). Under Indiana Appellate Rule 7(B), this 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. Id. at 1079-80. On appeal, we exercise
deference to a trial court’s sentencing decision, as required by Appellate Rule
7(B) and because we recognize the unique perspective a trial court has when
making decisions. Stewart v. State, 866 N.E.2d 858, 865-66 (Ind. Ct. App.
2007).
[14] In sentencing Coonce, the trial court identified the following aggravating
circumstances: (1) Coonce’s lack of truthfulness with his probation officer; (2)
Coonce’s behavior while incarcerated; (3) Coonce’s high risk for committing
further felonies; (4) Coonce’s criminal history; and (5) Coonce’s probation
violations. Tr. v3 at 143. Coonce argues that the trial court erred in sentencing
him to the maximum because the victim was partly culpable for the actions that
led to the charges because he entered into the fight between Coonce and Ellis.
Although Coonce argues that Cowell reported that his only lasting injury was a
bruise that lasted for months, the evidence shows that Cowell suffered
lacerations to his ear, was unconscious, and suffered a seizure after the beating.
[15] When considering the nature of the offense, the advisory sentence, here three
years (with a range of one to six years), is the starting point to determine the
appropriateness of a sentence. See Johnson v. State, 986 N.E.2d 852, 856 (Ind.
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Ct. App. 2013) (citing Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007),
clarified on reh’g, 875 N.E.2d 218 (2007)). Coonce argues that even though his
criminal history is rather lengthy, he is not the worst Level 5 felony offender.
Because he is not the worst offender, and because the nature of the offense was
not the worst, he argues, his fully executed, maximum term, sentence should be
revised.
[16] Even a minor criminal record reflects poorly on a defendant’s character, and in
this case, it is evident that Coonce has a significant criminal history. See
Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). Coonce’s
criminal history consists of approximately twenty-seven arrests, five prior felony
convictions and twenty-two prior misdemeanor convictions, including felony
theft, criminal conversion, felony auto theft, intimidation, domestic battery, and
arson. He has previously been placed on probation approximately fifteen times
and has had that probation revoked numerous times. After committing the
instant offense in Hamilton County, Coonce committed new felony offenses in
Allen County and Marion County, and had two active warrants out for his
arrest. In addition, he had several disciplinary incidents for criminal activity
while at the Hamilton County Jail and was placed in a padded cell due to his
behavior as recently as July 2016.
[17] In addition to his prior convictions, Coonce admitted to being a drug dealer and
to daily alcohol use, daily methamphetamine use, daily marijuana use, crack
cocaine use, powder cocaine use, and heroin use. He also admitted that he
never sought substance abuse treatment in the past because he never felt that he
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needed it. In his sentencing interview, he said that he was unemployed and
receiving disability benefits due to the “mental disabilities” of ADHD and
PTSD. Appellant’s App. v3 Conf. at 13-14. Furthermore, Coonce expressed
little remorse for his crimes, which also reflects negatively on his character.
With respect to the instant offenses, Coonce specifically stated, “play with fire
you get burned” and that Cowell was lucky that Coonce did not kill him. Id. at
14, 16; St. Ex. 88A. Coonce lied to the probation officer completing his
Presentence Investigation Report about his criminal history. He also admitted
that he “likes doing things that are risky and could get him in trouble” and that
he “gets an adrenaline dump” from committing crimes. Id. at 15. Nothing
before us reveals anything in Coonce’s character that would support revision to
a lesser sentence. Furthermore, Coonce was sentenced to half of the 12-year
maximum sentence he faced if he had received fully-consecutive sentences. See
Ind. Code §§ 35-50-2-6, 35-50-2-7, 35-50-3-2. His aggregate six-year-sentence is
not inappropriate in light of the nature of his offense and his character. Coonce
also challenges the maximum sentences arguing that unconsciousness cannot be
used as an aggravator because Cowell’s unconscious state served to elevate this
battery from a Class A misdemeanor, or Level 6 Felony, to the Level 5 felony.
Ind. Code § 35-42-2-1(g)(1). Ind. Code § 35-31.5-2-292(2), defines “serious
bodily injury” to include a bodily injury that causes unconsciousness. Because
the sentencing judge did not cite the seriousness of the injuries or the fact that
Cowell was knocked unconscious, they are not relevant to our review of his
sentence.
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[18] Coonce also challenges the imposition of the maximum term for a Level 5
felony where Cowell admitted that he physically confronted Coonce twice. If
we considered the culpability, severity and damage, as set out in Keller v State,
987 N.E.2d 1099, 1122 (Ind. Ct. App. 2013), Coonce argues that we must
consider the mitigating factors listed in Indiana Code § 35-38-1-7.1(b).
Consideration (3) under the statute is whether the victim of the crime induced
or facilitated the offense, and (5) is whether the person acted under strong
provocation. Coonce acknowledges that these factors were not applicable to
the other counts, but that the evidence points unmistakably to the fact that
Cowell instigated the confrontation between him and Coonce by throwing
himself into the mix and striking Coonce first. Furthermore, Coonce argues,
not only did Cowell do this upon initially throwing himself into the fray, but
after calling 911, he re-engaged Coonce by physically assaulting him. Cowell
concedes that provocation is not a recognized defense in this setting but argues
that the legislature certainly intended for it to be a consideration for sentencing
purposes. We are not persuaded by Coonce’s argument. Had Cowell not
intervened in the fight between Coonce and Ellis, we can only speculate as to
what would have happened. Furthermore, Ellis was a guest in Cowell’s home;
Coonce had been told to leave.
[19] Based on the facts of this case and Coonce’s criminal history, his six-year-
sentence for Level 5 felony battery on Cowell is not inappropriate in light of the
nature of the offense and his character.
[20] Affirmed.
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[21] Mathias, J., and Altice, J., concur.
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