Opinion
23A-CR-1730
06-26-2024
Clifford Lawon Green Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Chad A. Montgomery Montgomery Law Office Lafayette, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana Steven J. Hosler Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Tippecanoe Superior Court The Honorable Randy J. Williams, Judge Trial Court Cause No. 79D01-2111-F2-44
ATTORNEY FOR APPELLANT Chad A. Montgomery Montgomery Law Office Lafayette, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana Steven J. Hosler Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
May, Judge.
[¶1] Clifford Lawon Green appeals following his convictions of Level 2 felony robbery resulting in serious bodily injury, Level 3 felony aggravated battery,Level 6 felony residential entry, Class A misdemeanor resisting law enforcement, and twelve counts of Level 6 felony invasion of privacy, and the finding that he is a habitual offender. Green presents six issues for our review, which we consolidate, revise, and restate as:
Ind. Code § 35-42-5-1(a) (2017).
Ind. Code § 35-42-2-1.5 (2014).
Ind. Code § 35-43-2-1.5 (2014).
Ind. Code § 35-44.1-3-1(a) (2021).
Ind. Code § 35-46-1-15.1(11) (2019).
Ind. Code § 35-50-2-8 (2017).
1. Whether the trial court abused its discretion by admitting the victim's out-of-court statements on the basis that
1.1 they were excited utterances and
1.2 their admission did not violate Green's right to confront witnesses under
1.2.1 the Sixth Amendment of the United States Constitution or
1.2.2 Article 1, section 13 of the Indiana Constitution;
2. Whether the State presented sufficient evidence Green committed the offense of Level 2 felony robbery; and
3. Whether Green's sentence is inappropriate given the nature of his offense and his character. We affirm.
Facts and Procedural History
[¶2] Around 1:00 a.m. on November 2, 2021, S.W. and her ex-boyfriend Green were at S.W.'s house in Lafayette, Indiana. S.W. decided to leave the house, but then S.W. and Green began arguing and struggling over a bag S.W. was using to pack her things. During the argument, Green struck S.W. in the face, and S.W. fell. Green mounted S.W. and said, "I'm going to show you what a good dick feels like." (Tr. Vol. II at 88.) Green strangled S.W. until she lost consciousness, and when S.W. regained consciousness, she discovered that she was naked even though she had been fully clothed at the time she lost consciousness.
[¶3] Just before 8:30 a.m., Green and S.W. got into S.W.'s car, and Green began driving S.W. around and demanding money from her. S.W. offered Green $100.00, but Green wanted more money. He also told S.W. that he would not let her go to work because he was afraid she would tell people what happened. S.W. received a text from a friend, and S.W. replied to the text by sending a picture of herself to the friend. At that point, Green told S.W. he was going to "beat the living fuck out of [her]." (St. Ex. 3 at 7:25.) S.W. pressed the OnStar emergency call button in her car, and the OnStar responder connected S.W. with a 911 dispatcher. Green pulled the vehicle into an alleyway. He dragged S.W. from the car and kicked her in the head several times before taking her phone, wallet, car keys, and watch. Green then ran away from the vehicle, and S.W. returned to the car and spoke with the 911 dispatcher.
[¶4] Officer Wilson of the Lafayette Police Department responded to the call and found S.W. sitting in her car. S.W. was moaning and bleeding from the mouth. She reported that Green ran away and stole her cell phone, wallet, and car keys. She also stated that he had "been battering [her] since one o'clock in the morning." (Id. at 3:05.) S.W. gave Officer Wilson a physical description of Green and stated that Green was on house arrest. While speaking with Officer Wilson, S.W. spat up blood and held her head. Officer Wilson left with his police dog to search for Green.
Officer Wilson's first name is not included in the record.
[¶5] Shortly thereafter, Officer Adam Burton of the Lafayette Police Department and paramedics arrived at the scene, and Officer Burton's body camera recorded S.W.'s conversation with the paramedics. The paramedics asked S.W. questions about where she was injured, how the injuries occurred, whether she was able to walk to the ambulance, and where she wanted to be transported for treatment. Officer Burton observed that S.W. "had been crying, obviously visibly upset. She had swelling to her face on both sides of her jawline and she had blood on her lips and she was spitting blood out kind of consistently." (Tr. Vol. II at 26.) He also took pictures of S.W.'s injuries, and the paramedics transported S.W. to the hospital.
[¶6] Police located Green a few blocks from S.W.'s car, but Green ignored their commands to stop and fled into a wooded area. The police lost sight of Green, and Green broke into the screened porch of a nearby residence to hide from the police. The police nonetheless found Green a short time later because his ankle bracelet for house arrest "was pinging" his location. (Id. at 164.) The police also searched S.W.'s home, and they found bloody rags and clothes in the washing machine and the garage.
[¶7] While incarcerated in the Tippecanoe County Jail, Green made several calls to friends and family, and he participated in video visits. During a visit that occurred on November 3, 2021, with Susan Hawn, Green said, "I knew what I was about to do. Two minutes before, one minute before I did it. I took a pull on my cigarette. Put it out. Get to the refrigerator in the garage. Put my hand on the door and said, 'You're about to go to jail.'" (St. Ex. 44, file 11-03-2021 0930 at 14:50 - 15:03.) Green also instructed Hawn to contact S.W. and tell S.W. to convince the State not to charge him with robbery. In a phone call with Hawn that occurred later that day, Green had Hawn call S.W. while he remained on the line so that he could speak with S.W. in a three-way phone conversation.
[¶8] On November 8, 2021, the State charged Green with Level 2 felony robbery resulting in serious bodily injury, Level 5 felony domestic battery resulting in serious bodily injury, Level 6 felony domestic battery resulting in moderate bodily injury, Level 6 felony residential entry, Class A misdemeanor domestic battery, Class A misdemeanor resisting law enforcement, and Class A misdemeanor theft. The State also alleged Green qualified for a habitual offender sentence enhancement. On November 8, 2021, the trial court issued a no-contact order preventing Green from contacting S.W. Green nonetheless used his jail-issued tablet to repeatedly call S.W. On November 23, 2021, the State amended the charges against Green to include twelve counts of Level 6 felony invasion of privacy and a count of Level 3 felony aggravated battery.On November 16, 2022, Green filed a verified motion waiving his right to a jury trial.
On September 27, 2022, the State moved to amend the charges against Green to include a charge of Level 3 felony rape, but the trial court denied the State's motion.
[¶9] On March 29, 2023, Green chose to plead guilty without a plea agreement to Level 6 felony residential entry and twelve counts of Level 6 felony invasion of privacy. The trial court then conducted a bench trial regarding the remaining charges. During its case-in-chief, the State submitted Officer Wilson's body camera footage as State's Exhibit 3 and Officer Burton's body camera footage as State's Exhibit 4. Green objected to admission of the footage on the basis that S.W.'s statements recorded by the body camera were hearsay. The State countered that S.W.'s statements fell within the excited utterance exception to the rule against hearsay, and the trial court took Green's objections to the two exhibits under advisement. The State also played audio recordings of some of Green's phone conversations from the jail, including a November 6, 2021, phone conversation with Hawn in which Green said, "I need you to go get a toy . . . the one that we was [sic] looking at [at] Rural King." (St. Ex. 44, file 1106-20211100 at 4:15-4:31.) Green then stated, "I'm taking care of everything my way, what I should have did a long time ago." (Id. at 4:55-5:00.) Investigator Brad Hayworth of the Tippecanoe County Prosecutor's Office testified regarding the November 6, 2021, phone call: "The fact that he was referring to going to Rural King to buy a toy led me to believe that he wanted her to buy a firearm[.]" (Tr. Vol. II at 64.)
[¶10] On April 21, 2023, the trial court issued an order overruling Green's objection to State's Exhibits 3 and 4 and finding Green guilty of Level 2 felony robbery resulting in serious bodily injury, Level 3 felony aggravated battery, and Class A misdemeanor resisting law enforcement. The trial court also found Green guilty of Level 5 felony domestic battery and Class A misdemeanor theft, but the trial court did not enter judgment of conviction on each of those two charges because of double jeopardy concerns. On May 22, 2023, the trial court tried Green for the habitual offender sentence enhancement, and on May 26, 2023, the trial court issued an order finding that Green qualified for the enhancement.
[¶11] The trial court then held Green's sentencing hearing on June 27, 2023, and the trial court issued a written sentencing order following that hearing. The trial court explained in its written order:
The Court finds as mitigating factors the defendant entered a plea as to several counts and has an employment history.
The Court finds as aggravating factors the defendant's criminal history; 12 petitions to revoke filed with 8 found true and 2 pend [sic]; 2 motions to revoke pre-trial release; on probation in 2 cases at the time of the instant offense; the victim's statement; previous failures to appear; behavior and violations at the Tippecanoe County Jail during the pendency of the instant offense; placed in segregation at the TCJ; contact with outside people to influence the victim; repeated violation of the No Contact Order with more than 800 calls to the victim; and previous attempts at rehabilitation have failed.(App. Vol. II at 120.) The trial court sentenced Green to 30 years for Level 2 felony robbery resulting in serious bodily injury, 365 days for Class A misdemeanor resisting law enforcement, 2 years for Level 6 felony residential entry, 2.5 years for each count of Level 6 felony invasion of privacy, and 14 years for Level 3 felony aggravated battery. The trial court also enhanced Green's sentence for Level 2 felony robbery by an additional fourteen years because of the habitual offender finding. The trial court ordered Green to serve his sentences for Class A misdemeanor resisting law enforcement and Level 3 felony aggravated battery concurrent with his sentence for Level 2 felony robbery. The trial court further decreed that Green was to serve his sentence for Level 6 felony residential entry consecutive to his sentence for Level 2 felony robbery. The trial court also ordered Green to serve his sentences for twelve counts of Level 6 felony invasion of privacy concurrent with each other but consecutive to his sentences for Level 6 felony residential entry and Level 2 felony robbery, resulting in an aggregate sentence of 48.5 years. The trial court ordered Green to serve the first forty-seven years of his sentence in the Indiana Department of Correction, and the trial court suspended execution of the final one-and-one-half years of Green's sentence to probation.
Discussion and Decision
1. Admission of Evidence
1.1. Hearsay
[¶12] Green asserts S.W.'s statements on the body camera footage of Officer Wilson and Officer Burton were hearsay and the trial court abused its discretion by admitting those statements as excited utterances. We review a trial court's decision on the admission of evidence for an abuse of discretion. McQuay v. State, 10 N.E.3d 593, 596 (Ind.Ct.App. 2014). "A trial court abuses its discretion if its decision is clearly against the logic and effect of the facts and circumstances before the court or if the court misapplies the law." Id. "We may affirm a trial court's admissibility ruling on any theory supported by the record." Steinberg v. State, 941 N.E.2d 515, 522 (Ind.Ct.App. 2011), trans. denied.
[¶13] "'Hearsay' means a statement that: (1) is not made by the declarant while testifying at the trial or hearing; and (2) is offered to prove the truth of the matter asserted." Ind. Evid. R. 801(c). Hearsay is generally inadmissible, subject to several delineated exceptions. McMillen v. State, 169 N.E.3d 437, 441 (Ind.Ct.App. 2021). One such exception is an excited utterance. Ind. Evid. R. 803(2). An excited utterance is a "statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused." Id. We generally employ a three-part test to determine whether a statement qualifies as an excited utterance: "(1) a startling event has occurred; (2) a statement was made by a declarant while under the stress of excitement caused by the event; and (3) the statement relates to the event." Hurt v. State, 151 N.E.3d 809, 813 (Ind.Ct.App. 2020). The three-part test "is not a mechanical test, and the admissibility of an allegedly excited utterance turns on whether the statement was inherently reliable because the witness was under the stress of the event and unlikely to make deliberate falsifications." Boatner v. State, 934 N.E.2d 184, 186 (Ind.Ct.App. 2010). While "the amount of time that has passed is not dispositive, a statement that is made long after the startling event is usually less likely to be an excited utterance." Id.
[¶14] Here, S.W.'s statements captured on the body camera of Officer Wilson were made shortly after Green assaulted her and concerned the assault. Green dragged S.W. from the car and kicked her in the head immediately after S.W. pushed the OnStar emergency call button. At the beginning of the 911 call recording, S.W. can be heard crying for help and yelling "stop," (St. Ex. 1 at 2:20), and Officer Wilson arrived on the scene within a few minutes of when S.W. initiated the emergency call. S.W. identified Green and explained how Green had just attacked her. She then told Officer Wilson the direction in which Green ran. When Officer Burton encountered S.W. shortly after Officer Wilson left to pursue Green, she was still "obviously visibly upset" and "spitting blood out kind of consistently." (Tr. Vol. 2 at 26.) Thus, given S.W.'s physical condition and the short period of time between when Green assaulted her in the alley and when she spoke with Officer Wilson, the trial court did not abuse its discretion when it determined that S.W. was still under the stress and excitement of Green's assault when she spoke with Officer Wilson and, therefore, her statements to him were unlikely to have been fabricated. See, e.g., Ramsey v. State, 122 N.E.3d 1023, 1032 (Ind.Ct.App. 2019) (holding victim's statements to police officer were admissible pursuant to the excited utterance exception to the rule against hearsay because victim's demeanor indicated she was still under the stress of excitement caused by the defendant's confinement and physical abuse even though the confinement and abuse had started days before the victim's comments), trans. denied.
[¶15] In addition, Officer Burton's body camera footage recorded S.W.'s responses to the paramedics' questions, and like the excited utterance exception, statements made for the purpose of medical diagnosis and treatment are also excepted from the rule against hearsay. Indiana Evidence Rule 803(4) provides:
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
* * * * *
A statement that:
(A) is made by a person seeking medical diagnosis or treatment;
(B) is made for-and is reasonably pertinent to-medical diagnosis or treatment; and
(C) describes medical history; past or present symptoms, pain or sensations; their inception; or their general cause.
The underlying rationale supporting this exception is "the belief that a declarant's self-interest in seeking medical treatment renders it unlikely the declarant will mislead the person he wants to treat him." McClain v. State, 675 N.E.2d 329, 331 (Ind. 1996). We engage in a two-step analysis to determine whether a statement falls within the medical diagnosis or treatment exception: "1) is the declarant motivated to provide truthful information in order to promote diagnosis and treatment; and 2) is the content of the statement such that an expert in the field would reasonably rely on it in rendering diagnosis or treatment." Id. To satisfy the first prong of this analysis, the declarant must subjectively believe that he is making the statement for the purpose of medical diagnosis and treatment. Id. Here, the paramedics were in uniform when they questioned S.W. and they physically examined S.W.'s injuries while questioning her. Thus, S.W. understood that she was speaking with medical professionals, and she was motivated to provide truthful information to the paramedics so that they could effectively diagnose and treat her injuries. See, e.g. Shoda v. State, 132 N.E.3d 454, 468 (Ind.Ct.App. 2019) (holding victim understood he was speaking with a nurse and was motivated to provide truthful information to promote accurate diagnosis and treatment).
[¶16] With respect to the second prong, "[s]tatements about 'the nature of the assault or abuse,' even if they identify the perpetrator, can satisfy the second prong of the reliability test if the statements 'assist medical providers in recommending potential treatment for sexually transmitted disease, pregnancy testing, psychological counseling, and discharge instructions.'" Steele v. State, 42 N.E.3d 138, 142 (Ind.Ct.App. 2015) (quoting VanPatten v. State, 986 N.E.2d 255, 260 (Ind. 2013)). The paramedics' questions were focused on determining when, where, and how S.W. incurred her injuries, and that information was necessary so that the paramedics could safely transport S.W. to receive treatment. Therefore, S.W.'s statements satisfied the second prong of the analysis for the medical diagnosis exception, and the trial court did not abuse its discretion in admitting Officer Burton's body camera footage. See, e.g., Ward v. State, 50 N.E.3d 752, 763 (Ind. 2016) (holding medical providers' questions to domestic violence victim about the perpetrator assisted the providers in properly classifying the victim, discharging the victim to a safe place, and making proper post-discharge referrals).
1.2 Right to Confront Witnesses
[¶17] In addition, Green contends the trial court's admission of Exhibits 3 and 4 violated his right-guaranteed by both the federal and state constitutions-to confront the witnesses against him. While the body camera footage showed statements S.W. made to emergency personnel at the scene, S.W. did not testify at trial, and therefore, Green could not cross-examine her.
1.2.1 Sixth Amendment
[¶18] Green argues that the trial court's admission of S.W.'s statements to Officer Wilson violated his rights under the confrontation clause of the United States Constitution's Sixth Amendment. When the defendant challenges the admission of evidence as a constitutional violation, our review is de novo. Cardosi v. State, 128 N.E.3d 1277, 1286 (Ind. 2019). The Sixth Amendment provides, in part, that: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" "The U.S. Supreme Court has held that the Confrontation Clause bars 'admission of [a] testimonial statement of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for crossexamination.'" State v. Martin, 885 N.E.2d 18, 19-20 (Ind.Ct.App. 2008) (quoting Crawford v. Washington, 124 S.Ct. 1354, 1365 (2004)) (internal footnote omitted). "To determine whether a statement is testimonial, we must decide whether it has 'a primary purpose of creating an out-of-court substitute for trial testimony.'" Turner v. State, 953 N.E.2d 1039, 1055 (Ind. 2011) (quoting Michigan v. Bryant, 131 S.Ct. 1143, 1155 (2011)). "[I]f 'circumstances objectively indicate' the primary purpose is to 'prove past events potentially relevant to later criminal prosecution' then statements are testimonial." Young v. State, 980 N.E.2d 412, 418 (Ind.Ct.App. 2012) (quoting Davis v. Washington, 126 S.Ct. 2266, 2273-74 (2006)). However, if the primary purpose of an inquiry is to gather information to respond to an ongoing emergency, then the subject's response to that inquiry is more likely to be considered nontestimonial. Id. "Determining whether an emergency exists and is ongoing is a highly context-dependent inquiry. We consider whether the interrogation is targeted at responding to a call for help where a threat to people is ongoing as compared to an interrogation targeted at establishing past events." Id. at 419 (internal citation and quotation marks omitted). In making that determination, we look at four factors:
(1) whether the declarant was describing events "as they were actually happening" or past events; (2) whether the declarant was facing an ongoing emergency; (3) whether the nature of what was asked and answered was such that the elicited statements were necessary to be able to resolve the present emergency rather than simply to learn about past events; and (4) the level of formality of the interview.Martin, 885 N.E.2d at 20 (quoting Davis v. Washington, 126 S.Ct. 2266, 2276 (2006)).
[¶19] Green contends S.W.'s statements were testimonial because "[n]o emergency existed" when Officer Wilson questioned S.W. (Appellant's Br. at 18.) We disagree. S.W. required medical attention at the time Officer Wilson questioned her. Officer Wilson's questions were intended to determine what happened, who had attacked her, and how to identify the attacker. The police needed this information so that they could procure the necessary services for S.W. and properly assess the degree of danger Green posed to the public as an at-large fugitive. Officer Wilson's interaction with S.W. was also short and informal. Therefore, we hold S.W.'s statements were nontestimonial because Officer Wilson's questions were intended to address an ongoing emergency rather than preserve information for future criminal prosecution. See, e.g., Martin, 885 N.E.2d at 21 (holding victim's statements were nontestimonial because the primary purpose of officer's questions was to resolve an ongoing emergency after defendant had fled the scene with the victim's children).
[¶20] Likewise, Green's Sixth Amendment right to confront the witnesses against him was not violated when the trial court admitted Officer Burton's body camera footage. The footage showed S.W.'s statements to the paramedics, and the primary purpose of the paramedics' questions was to accurately assess S.W.'s condition to provide proper medical treatment, not to preserve statements for trial. Therefore, S.W.'s statements were nontestimonial, and because the statements were nontestimonial, the trial court did not violate Green's right under the Sixth Amendment to confront the witnesses against him. See, e.g., Ward, 50 N.E.3d at 760 (holding victim's statements to paramedic were nontestimonial because purpose was the proper procurement of medical treatment rather than the preservation of testimony for future prosecution).
1.2.2 Article 1, section 13 of the Indiana Constitution
[¶21] Green also asserts that the trial court's admission of Exhibits 3 and 4 violated the Indiana Constitution's confrontation clause. Article 1, section 13 of the Indiana Constitution provides: "In all criminal prosecutions, the accused shall have the right . . . to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor." "Although this language is similar to the text of the Sixth Amendment to the United States Constitution, 'the rights guaranteed by Article 1, § 13 are not necessarily identical to those given by the Sixth Amendment.'" Cook v. State, 220 N.E.3d 72, 75 (Ind.Ct.App. 2023) (quoting State v. Owings, 622 N.E.2d 948, 950 (Ind. 1993)). The "face to face" requirement "has not always been interpreted literally. Otherwise, the testimony of all absent witnesses, whether unavailable through death or illness or threat, would never be admissible at trial." Ward, 50 N.E.3d at 756. Nonetheless, when a live witness reports a hearsay statement from a declarant, "the constitutional reference to meeting the 'witness' is literally fulfilled because the witness reporting the hearsay is on the stand." Pierce v. State, 677 N.E.2d 39, 49 (Ind. 1997). Here, the State introduced Exhibits 3 and 4 during Officer Burton's live testimony at Green's trial. Therefore, Green's right under the Indiana Constitution to confront the witnesses against him was not violated. See, e.g., Ward, 50 N.E.3d at 756-57 (holding defendant's confrontation right under the Indiana Constitution was not violated when paramedic and forensic nurse testified under oath at trial and the defendant confronted them face to face).
2. Sufficiency of the Evidence
[¶22] Green argues the State presented insufficient evidence to sustain his conviction of Level 2 felony robbery resulting in serious bodily injury. Our standard of review regarding such claims is well-settled:
Sufficiency-of-the-evidence claims . . . warrant a deferential standard, in which we neither reweigh the evidence nor judge witness credibility. Rather, we consider only the evidence supporting the judgment and any reasonable inferences drawn from that evidence. We will affirm a conviction if there is substantial evidence of probative value that would lead a reasonable trier of fact to conclude that the defendant was guilty beyond a reasonable doubt.Powell v. State, 151 N.E.3d 256, 262-63 (Ind. 2020).
[¶23] Indiana Code section 35-42-5-1(a) provides that "a person who knowingly or intentionally takes property from another person . . . by using or threatening the use of force . . . commits robbery . . . a Level 2 felony if it results in serious bodily injury to any person other than a defendant." A "serious bodily injury" is an injury that creates a substantial risk of death or results in serious permanent disfigurement, unconsciousness, extreme pain, loss of a fetus, or the permanent or protracted loss or impairment of a bodily member or organ. Ind. Code § 35-31.5-2-292.
[¶24] Green contends the State failed to present sufficient evidence that S.W. sustained a serious bodily injury during the commission of a robbery. However, the State presented evidence of two instances when Green took property from S.W. while inflicting serious bodily injury. Green took a bag away from S.W. during an argument inside her home and strangled her until she lost consciousness. The forensic nurse's later physical exam of S.W. at the hospital found S.W. had bruising consistent with the loss of blood flow that occurs while being strangled. Later that morning, after S.W. pushed the OnStar emergency call button, Green dragged S.W. out of her car and kicked her in the head before leaving the scene with her car keys, cell phone, wallet, and watch. Kicking someone in the head can result in broken facial bones, bleeding in the brain, and other injuries, and the emergency room doctor at the hospital observed that S.W. presented with "a traumatic subarachnoid hemorrhage" and "a left maxillary sinus fracture and then she had a scalp contusion and multiple other abrasions and lacerations." (Tr. Vol. 2 at 21.) Thus, the State presented sufficient evidence to sustain Green's conviction of Level 2 felony robbery resulting in serious bodily injury. See, e.g., McFadden v. State, 25 N.E.3d 1271, 1275 (Ind.Ct.App. 2015) (holding victim suffered a serious bodily injury when his injuries consisted of a fractured nose, bleeding in the brain, an abrasion to the back of his head, and a contusion near his left eye).
3. Appropriateness of Sentence
[¶25] Lastly, Green contends that his sentence is inappropriate given the nature of his offenses and his character. He specifically asserts that his sentence for Level 2 felony robbery is inappropriate, but our focus in evaluating an inappropriate sentence claim is 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." Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Indiana Appellate Rule 7(B) grants us the authority to revise a defendant's sentence if it is inappropriate considering the nature of the offense and character of the offender. George v. State, 141 N.E.3d 68, 73 (Ind.Ct.App. 2020), trans. denied. "Our review is deferential to the trial court's decision, and our goal is to determine whether the appellant's sentence is inappropriate, not whether some other sentence would be more appropriate." Id. We may look at any factors appearing in the record when assessing the nature of the offense and character of the offender. Boling v. State, 982 N.E.2d 1055, 1060 (Ind.Ct.App. 2013). The defendant bears the burden of persuading us that his sentence is inappropriate. Hubbert v. State, 163 N.E.3d 958, 960 (Ind.Ct.App. 2021), trans. denied.
[¶26] "Our analysis of the nature of the offense requires us to look at the nature, extent, heinousness, and brutality of the offense." Pritcher v. State, 208 N.E.3d 656, 668 (Ind.Ct.App. 2023). As our Indiana Supreme Court has explained, "compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality)," may merit a downward revision of a defendant's sentence. Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). "When we evaluate whether a sentence is inappropriate given the nature of the offense, we first look at the advisory sentence." Slater v. State, 223 N.E.3d 298, 306 (Ind.Ct.App. 2023), trans. denied. Indiana Code section 35-50-2-4.5 provides that a Level 2 felony is punishable by "a fixed term of between ten (10) and thirty (30) years, with the advisory sentence being seventeen and one-half (17 %) years." Indiana Code section 35-50-2-5 provides that a person convicted of a Level 3 felony "shall be imprisoned for a fixed term of between three (3) and sixteen (16) years, with the advisory sentence being nine (9) years." Indiana Code section 35-50-2-7 provides: "A person who commits a Level 6 felony . . . shall be imprisoned for a fixed term of between six (6) months and two and one-half (2 %) years, with the advisory sentence being one (1) year." A Class A misdemeanor is punishable by a fixed term of imprisonment of up to one year. Ind. Code § 35-50-3-2. Indiana Code section 35-50-2-8(i) provides: "The court shall sentence a person found to be a habitual offender to an additional fixed term that is between . . . eight (8) years and twenty (20) years, for a person convicted of murder or a Level 1 through Level 4 felony[.]"
[¶27] Green's aggregate forty-eight-and-one-half year sentence is significantly less than the maximum sentence the trial court could have imposed given the number and severity of his convictions. Even though Green received a thirtyyear sentence for Level 2 felony robbery, the trial court did not enhance the sentence by the maximum amount it could have because of Green's adjudication as a habitual offender. Moreover, while the trial court sentenced Green to the maximum term of two-and-one-half years for each of his twelve Level 6 felony invasion of privacy convictions, the trial court ordered Green to serve those sentences concurrent with each other even though the trial court could have ordered Green to serve the sentences consecutively. See, e.g., Lane v. State, 232 N.E.3d 119, 130 (Ind. 2024) (holding trial court's order that defendant serve ten misdemeanor sentences consecutively did not result in an inappropriate aggregate sentence when defendant repeatedly violated a nocontact order by sending letters to his victim from prison). In addition, Green's sentences for Level 3 felony aggravated battery and Level 6 felony residential entry were each below the maximum.
[¶28] Green's offenses were particularly egregious. He chose to beat, strangle, and disrobe S.W. despite telling himself beforehand that his actions would result in him going to jail. Hours later, Green prevented S.W. from going to work because he did not want S.W. to tell her coworkers what he did to her. He threatened S.W. when he learned that she was communicating with a friend regarding her well-being, and he dragged her out of the car and kicked her in the head when she tried to call for help. In addition, Green fled the scene, ignored officer commands to stop, and damaged a stranger's property by breaking into the stranger's screened porch. While incarcerated, Green instructed a confederate to convey messages to S.W. encouraging her not to cooperate with the police, and he attempted to call S.W. hundreds of times despite a no-contact order. Moreover, S.W.'s injuries from Green's attacks were severe. Green strangled S.W. long enough that she lost consciousness and developed bruising. Green also broke a bone in S.W.'s face, caused brain bleeding, and left her with cuts and bruises all over her body. We cannot say the nature of Green's offenses merits a lesser sentence. See, e.g., Perry v. State, 78 N.E.3d 1, 13 (Ind.Ct.App. 2017) (holding maximum sentence for domestic battery was not inappropriate given the "senseless and reprehensible" nature of defendant's offense).
[¶29] One factor we consider when assessing a defendant's character is his criminal history. McHenry v. State, 152 N.E.3d 41, 47 (Ind.Ct.App. 2020). Green's criminal history consists of twelve felony convictions, including convictions of Level 6 felony strangulation, Level 6 felony domestic battery, Level 6 felony invasion of privacy, and an Illinois conviction of possession of a stolen vehicle. In addition, Green has ten misdemeanor convictions, including convictions of Class A misdemeanor battery and Class A misdemeanor resisting law enforcement. Moreover, Green has proven himself incapable of abiding by the terms of probation. Over the course of Green's criminal career, the State has filed a dozen petitions to revoke Green's probation, with a trial court finding eight of those petitions to be true. Green's history includes multiple failures to appear for court hearings, and Green was serving a sentence on home detention when he committed the instant offenses. Green also committed several jail conduct violations while incarcerated in the Tippecanoe County Jail and blatantly ignored the trial court's order preventing him from contacting S.W. Given Green's lengthy criminal history, multiple probation revocations, conduct violations, and his egregious harassment of S.W. while incarcerated, his assertion that he is not one of "the very worst offenders," (Appellant's Br. at 11), rings hollow. Therefore, we hold his aggregate forty-eight-and-one-half-year sentence is not inappropriate. See, e.g., Hessler v. State, 213 N.E.3d 511, 527 (Ind.Ct.App. 2023) (holding defendant's aggregate 650-year sentence was not inappropriate given defendant's criminal history), trans. denied.
Green also asserts that remand is necessary for the trial court to complete an abstract of judgment. However, the trial court completed an abstract of judgment on September 13, 2023, and therefore, we do not need to remand for that purpose.
Conclusion
[¶30] The trial court did not abuse its discretion by admitting S.W.'s statements recorded by the body cameras of Officer Wilson and Officer Burton. S.W.'s statements fell within the exceptions to the rule against hearsay for excited utterances and statements to medical providers. They were also nontestimonial, and therefore, their admission did not violate Green's confrontation right under the Sixth Amendment. Green's confrontation right under the Indiana Constitution was not violated because Officer Burton provided live testimony during Green's trial. The State presented sufficient evidence to sustain Green's Level 2 felony robbery conviction because Green both took property from S.W. and inflicted serious bodily injury. Moreover, Green's sentence is not inappropriate given the egregious nature of his offenses and his lengthy criminal history. Accordingly, we affirm the trial court.
[¶31] Affirmed.
Vaidik, J., and Kenworthy, J., concur.