MEMORANDUM DECISION
Case Summary
[1] Following a jury trial, Jeffrey L. Tracy was convicted of Level 3 felony aggravated battery and Level 5 felony battery by means of a deadly weapon. The trial court sentenced him to an aggravated term of fifteen years with six years suspended. He raises the following three revised and restated issues:
1. Whether the state presented sufficient evidence to rebut his claim of self-defense;
2. Whether the trial court abused its discretion by refusing to give a lesser included jury instruction as requested by Tracy; and
3. Whether his sentence was inappropriate.
[2] We affirm.
Facts & Procedural History
[3] On August 29, 2019, Tracy was at the Old Time Gnaw Bone Flea Market (the Market). This property consists of numerous buildings, businesses, and a large gravel parking lot. Tracy hired Terrie Allman (Terrie) and Terries boyfriend, Donald Atwood (Atwood), to help him sort through his belongings and clean out the Market. This was in an effort to recover his security deposit that he paid on the property. Tracy and his wife, Patricia, were in “charge of the property” but were required to turn over the property to Charlie Placke (Charlie) in three to four days. Transcript Vol. 3 at 53. Tracy periodically checked-in with Terrie and Atwood throughout the day to see how the cleanout was progressing.
[4] Tommy Allman (Tommy) was also on the property at this time, hired by Charlie to deconstruct a concession stand. When Tracy saw Tommy during one of his check-ins, he said, “I told you [that] you are not allowed to be here” Id. at 11. Tommy explained that he was working for Charlie and then Tracy “stormed off.” Id. at 12.
[5] Around 7:00 p.m., Tracy asked Terrie, Tommy, and Atwood to assist him in getting something out of the back of his truck. Once they were gathered at his truck, Tracy accused all three of stealing an air compressor that belonged to Patricia. Believing Terrie threw gravel at him, Tracy grabbed an axe handle and ordered everyone on the ground. According to Atwood, “it was chaos ․ it just went to hell.” Id. at 131. Tracy then swung the axe handle at Tommys head, but Terrie stopped it from hitting Tommy with her left hand. Tracy then struck Terrie two more times with the axe handle.
[6] As Terrie was lying on the gravel lot, Atwood moved toward Tracy, and Tracy responded by hitting Atwood in the back of the leg with the axe handle. Atwood reacted by throwing a carpenter square tool at Tracy. Atwood then got into his vehicle and drove away as Tommy ran toward a man who was nearby. Tracy yelled to Tommy to “get over here, get over here, or Im just going to keep on beating on [Terrie] until you get over here.” Id. at 18. Still on the ground, Terrie attempted to cover herself while Tracy continued to beat her with the axe handle. Tracy then drug Terrie around the parking lot.
[7] Law enforcement arrived on scene and saw Tracy standing in the parking lot near his truck. Terrie had a shirt wrapped around her swollen and bloody hand. Officers observed that she had bruising on her back and her hand, as well as a two to three inch cut on her left hand. The phone that was in her pocket was broken. Terrie received medical attention at the scene and later went to the hospital where she received numerous stitches and a splint for her left hand. Officers took statements from two witnesses, whose accounts of what transpired were consistent with statements taken from Terrie, Tommy, and Atwood. After collecting statements, Tracy was arrested and transported to the Brown County Jail.
[8] On September 9, 2019, the State charged Tracy with: Count I, aggravated battery as a Level 3 felony; Count II, battery by means of a deadly weapon as a Level 5 felony; Count III, battery by a means of a deadly weapon as a Level 5 felony; and Count IV, attempted battery by means of a deadly weapon as a Level 5 felony. A jury trial was held from September 14-17, 2021. At trial, Tracy admitted to hitting Terrie three times, but claimed it was self-defense.
[9] At the conclusion of the evidence, the jury found Tracy guilty of Counts I, II, and IV, and not guilty on Count III. On October 15, 2021, the trial court held a sentencing hearing during which it vacated Tracys conviction on Count IV based on double jeopardy grounds. The trial court sentenced Tracy to eleven years with seven years executed and four years suspended on Count I, and to four years with two years executed and the remainder suspended on Count II. The trial court ordered these sentences to be served consecutively for an aggregate sentence of fifteen years with six years suspended.
[10] Tracy now appeals. Additional facts will be provided as necessary.
Discussion and Decision
1. Sufficiency
[11] Tracy argues that the evidence is insufficient to support his conviction because the State failed to rebut his claim of self-defense. The standard of review for a challenge to the sufficiency of evidence to rebut a claim of self-defense is the same as the standard for any sufficiency claim. Wilson v. State, 770 N.E.2d 799, 801 (Ind. 2002). We consider only the probative evidence and reasonable inferences supporting the verdict. Tharpe v. State, 955 N.E.2d 836, 844 (Ind. Ct. App. 2011), trans. denied. We neither reweigh the evidence nor judge the credibility of witnesses. Wilson, 770 N.E.2d at 801. The trier of fact is entitled to determine which version of the incident to credit. Scott v. State, 867 N.E.2d 690, 695 (Ind. Ct. App. 2007), trans. denied.
[12] Self-defense is a legal justification for an otherwise criminal act. Bryant v. State, 984 N.E.2d 240, 250 (Ind. Ct. App. 2013), trans. denied. “A person is justified in using reasonable force against any other person to protect the person ․ from what the person reasonably believes to be the imminent use of unlawful force.” Ind. Code § 35-41-3-2(c). The person, however, is not justified in using force if, among other things, “the person has entered into combat with another person or is the initial aggressor unless the person withdraws from the encounter and communicates to the other person the intent to do so and the other person nevertheless continues or threatens to continue unlawful action.” I.C. § 35-41-3-2(g)(3).
[13] To prevail on his self-defense claim, Tracy was required to show that he: “(1) was in a place where he had a right to be; (2) acted without fault; and (3) was in reasonable fear o[r] apprehension of bodily harm.” Richardson v. State, 79 N.E.3d 958, 964 (Ind. Ct. App. 2017), trans. denied. When a claim of self-defense finds support in the evidence, the State bears the burden of negating at least one of the necessary elements. Id. If a defendant is convicted despite his claim of self-defense, we will reverse only if no reasonable person could say that self-defense was negated beyond a reasonable doubt. Id.
[14] Tracy claims he was acting in self-defense because he grabbed an axe handle out of the bed of his truck only after Terrie threw gravel at him. However, this claim is based on his own self-serving testimony at trial. Carolyn Duncan, an eyewitness, testified at trial that she did not see anyone throw anything at Tracy and further explained that Terrie “didnt have a chance to throw anything.” Transcript Vol. 2 at 108-109.
[15] The evidence favorable to the verdict reveals that Tracy was not the victim in this case, rather, he was the instigator of the event and did not act without fault. The evidence reveals that Tracy called Terrie, Tommy, and Atwood to the back of his pickup truck under the guise of needing help to unload something from his truck. He then confronted them on the whereabouts of missing items and ordered them onto the ground, indicating that he had permission from the police “to do this.” Transcript Vol. 3 at 130. Then “it was chaos ․ it just went to hell.” Id. 3 at 131. He swung the axe handle at Tommys head, but Terrie stopped it with her left hand. Tracy proceeded to hit Terrie, who was unarmed and on the ground, at least two more times with the axe handle and drug her around the parking lot.
[16] The States evidence at trial was sufficient to rebut Tracys claim of self-defense, and the facts set forth above are sufficient to support the jurys determination of guilt as to Count I, aggravated battery as a Level 3 felony, and Count II, battery by means of a deadly weapon, as a Level 5 felony.
2. Lesser Included Instruction
[17] Tracy claims he was entitled to an instruction on a Class B misdemeanor battery as an included offense of Level 3 felony aggravated battery in Count I and Level 5 felony aggravated battery by means of a deadly weapon in Count II. “Instructing a jury is left to the sound discretion of the trial court and we review its decision only for an abuse of discretion.” Washington v. State, 997 N.E.2d 342, 345 (Ind. 2013) (citing Stringer v. State, 853 N.E.2d 543, 548 (Ind. Ct. App. 2006). “An abuse of discretion occurs when a decision is clearly against the logic and effect of the facts and circumstances before the court.” Hauk v. State, 729 N.E.2d 994, 1001 (Ind. 2000)). When a party requests an instruction on a lesser included offense to the charged crime, the trial court follows a three-part test:
(1) determine whether the lesser-included offense is inherently included in the crime charged; if not, (2) determine whether the lesser-included offense is factually included in the crime charged; and, if either, (3) determine whether a serious evidentiary dispute exists whereby the jury could conclude that the lesser offense was committed but not the greater. The trial court should grant the defendants request for a lesser-included offense instruction if it answers the third inquiry affirmatively. Id. at 567.
Id. at 998. (citation omitted).
[18] Here, even assuming the lesser included offense is inherently included in the crime charged or the lesser included offense is factually included in the crime charged, there is no serious evidentiary dispute under the third part of the test. To determine if a serious evidentiary dispute exists, a trial court “examines the evidence presented by both parties regarding the element(s) distinguishing the greater offense from the lesser one.” Leonard v. State, 80 N.E.3d 878, 884 (Ind. 2017) (citing Young v. State, 699 N.E.2d 252, 255 (Ind. 1998)). This inquiry “generally requires the trial court to evaluate the weight and credibility of evidence and then subjectively determine the seriousness of any resulting dispute.” Fish v. State, 710 N.E.2d 183, 185 (Ind. 1999).
A. Nature of Injury
[19] We first examine whether the trial court abused its discretion when it refused to give the jury an instruction on a Class B misdemeanor battery as a lesser included offense of Count I, Level 3 felony aggravated battery. Class B misdemeanor battery is defined, “a person who knowingly or intentionally: touches another person in a rude, insolent or angry manner.” Ind. Code § 35-42-2-1(c)(1). That is, only a touching is required with no corresponding injury. In contrast, Level 3 felony aggravated battery is defined in part as, “a person who knowingly or intentionally inflicts injury on a person that creates a substantial risk of death or causes protracted loss or impairment of the function of a bodily member or organ.” I.C. § 35-42-2-1.5(2). The distinction between the two crimes is the harm or lack thereof incurred by the victim.
[20] Here, no serious evidentiary dispute exists about the nature of Terries injuries. As a result of the altercation with Tracy, Terrie needed numerous stitches and a splint. She was not able to work or drive for four to six weeks after the incident. She had trouble dressing and she was not able to sleep properly. In the two years since the incident, Terrie has not regained full function of her hand. In light of Terries obvious injuries, the trial court did not abuse its discretion when it refused to give the jury an instruction on a Class B misdemeanor battery as a lesser included offense of the Level 3 felony aggravated battery offense.
B. Deadly Weapon
[21] We next examine whether the trial court abused its discretion when it declined to give Tracy an instruction on a Class B misdemeanor battery as an included offense of Count II, Level 5 felony battery by means of a deadly weapon. “Battery is a Level 5 felony if ․ the offense is committed with a deadly weapon.” I.C. § 35-42-2-1(c)(1), (g)(2). As previously stated, Class B misdemeanor battery is defined as “a person who knowingly or intentionally ․ touches another person in a rude, insolent or angry manner.” I.C. § 35-42-2-1(c)(1). The only element that distinguishes the Level 5 felony and the Class B misdemeanor is the use of a deadly weapon. Ind. Code § 35-31.5-2-86 defines deadly weapon in part, as “(2) A destructive device, weapon, device, taser (as defined in I.C. 35-47-8-3) or electronic stun weapon (as defined in I.C. 35-47-8-1), equipment, chemical substance, or other 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.”
[22] “The question of whether a weapon is a deadly weapon is determined from a description of the weapon, the manner of its use, and the circumstances of the case.” Merriweather v. State, 778 N.E.2d 449, 457 (Ind. Ct. App. 2002) (quoting Glover v. State, 441 N.E.2d 1360, 1362 (Ind. 1982)). In this case the weapon was an axe handle and it was used to repeatedly beat Terrie. First, Tracy hit her in the hand as she tried to spare Tommy and then Tracy beat her as she laid in the parking lot. We find no serious evidentiary dispute exists about whether the axe handle constituted a deadly weapon or whether Tracy used the axe handle to commit battery. Cf. Burgh v. State, 79 N.E.3d 955, 957 (Ind. Ct. App. 2017) (finding sufficient evidence of the use of a deadly weapon where defendant “used the paved surface as a blunt object against which to smash Bangharts skull six times,” which was “comparable to the use of a rock or similar object with which to hit a victim”). Because no serious evidentiary dispute existed, the trial court did not abuse its discretion when it declined to give a jury instruction on Class B misdemeanor battery as an included offense of Level 5 felony battery by means of a deadly weapon.
3. Inappropriate Sentence
[23] Tracy argues that his sentence was inappropriate. This court has the constitutional authority to revise a sentence authorized by statute if, “after due consideration of the trial courts decision,” we find that the sentence imposed is inappropriate in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B). The question under App. R. 7(B) is “not whether another sentence is more appropriate” but rather “whether the sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). The burden is on the defendant to persuade the appellate court that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). “Sentencing review under Appellate Rule 7(B) is very deferential to the trial court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012).
[24] In order to assess the appropriateness of a sentence, we first look to the statutory range established for the classification of the relevant offenses. Here, Tracy was convicted of aggravated battery as a Level 3 felony and battery by means of a deadly weapon as a Level 5 felony. The sentencing range for a Level 3 felony is three to sixteen years with an advisory sentence of nine years. Ind. Code § 35-50-2-5(b). Tracy received eleven years with seven years executed and four years suspended. The sentencing range for a Level 5 felony is one to six years with an advisory sentence of three years. I.C. § 35-50-2-6(b). Tracy received four years with two years executed and the remainder suspended.
[25] When reviewing the nature of the offense we look to the details and circumstances of the offense and the defendants participation therein. Madden v. State, 162 N.E.3d 549, 564 (Ind. Ct. App. 2021). In this case, Tracy gathered Terrie, Tommy, and Atwood around the back of his truck under false pretenses and then –unprovoked– swung an axe handle at Tommys head but hit Terries hand. Even after Terrie fell to the ground –helpless and unarmed– he continued to beat her with the axe handle. These repeated blows caused Terrie to “black out.” Transcript Vol. 2. at 221. In ordering consecutive sentences, the trial court explained, “[Tracy] continued to use an ax[e] handle to inflict injuries to someone who was helpless, on the ground and already seriously injured by the first strike.” Transcript Vol. 4 at 149-50. Tracy has failed to establish that the nature of the offense warrants reduction of his sentence.
[26] We conduct our review of a defendants character by engaging in a broad consideration of his qualities. Madden, 162 N.E.3d at 564. Character is found in what we learn of the offenders life and conduct. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). Tracy has accumulated two misdemeanor convictions: operating while intoxicated in 1994 and 2017. Tracy served in the U.S. Air Force from 1986-1989, and was employed most of his adult life, and managed his own business. Tracy had a history of depression and anxiety for which he takes prescription medication. He also believes he has a problem with alcohol, but reports that he was not under the influence of drugs or alcohol at the time of the offense. We note, as did the trial court, that Tracys criminal history was limited and remote. The brutality and senselessness of the current offense however, is telling of Tracys character. Tracy has not demonstrated that his fifteen-year aggregate sentence with six years suspended is inappropriate in light of his character.
[27] Ultimately, we “do not look to see whether the defendants sentence is appropriate or if another sentence might be more appropriate; rather, the test is whether the sentence is inappropriate.” Miller v. State, 105 N.E.3d 194, 196 (Ind. Ct. App. 2018). Tracy has failed to carry his burden of establishing that his sentence is inappropriate in light of the nature of the offense and his character.
[28] Judgment affirmed.
Altice, Judge.
Vaidik, J. and Crone, J., concur.