Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2149 | February 27, 2017 Page 1 of 7

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Brian A. Karle

Ball Eggleston, PC

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr. 

Attorney General of Indiana 

Caryn N. Szyper 

Deputy Attorney General 

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

James D. Smith,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

February 27, 2017

Court of Appeals Case No.

79A02-1609-CR-2149

Appeal from the Tippecanoe 

Superior Court

The Honorable Steven P. Meyer, 

Judge

Trial Court Cause No.

79D02-1601-F5-5

Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2149 | February 27, 2017 Page 2 of 7

Statement of the Case

[1] James D. Smith appeals his sentence following his conviction for battery, as a 

Level 5 felony. Smith presents two issues for our review, namely, whether the 

trial court abused its discretion when it sentenced him and whether his sentence 

is inappropriate in light of the nature of the offense and his character. We 

affirm.

Facts and Procedural History

[2] On December 21, 2015, Smith went to see his ex-girlfriend, Annie Carter, at her 

house in Lafayette. Smith began to argue with Carter, and he threw her to the 

floor and hit her in the face with a liquor bottle. At some point, Carter’s 

boyfriend, Zaccheues Ward, arrived at the house, and Smith physically 

attacked him. Smith struck Ward in the head with an empty liquor bottle, 

which caused Ward to fall down the basement stairs. Smith then went down to 

the basement and struck Ward in the head multiple times with the bottle. 

Smith left Ward lying on the basement floor and left the house. Smith did not 

call for emergency medical help for Ward, who had sustained a skull fracture,

and Smith fled to Chicago in an attempt to avoid arrest for the battery.

[3] The State charged Smith with two counts of battery, as Level 5 felonies, and 

one count of battery, as a Level 6 felony. The day before trial, Smith pleaded 

guilty to one count of battery, as a Level 5 felony, and, in exchange for that 

plea, the State dismissed the other two charges. The trial court accepted 

Smith’s guilty plea and, following a sentencing hearing, sentenced Smith to five 
Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2149 | February 27, 2017 Page 3 of 7

years executed. In its sentencing statement, the trial court identified the 

following mitigators: Smith’s guilty plea without the benefit of a plea 

agreement and his acceptance of responsibility; his participation in 

rehabilitative programs in jail; his difficult childhood. And the trial court 

identified the following aggravators: his serious criminal history; his violation 

of pre-trial release; prior petitions to revoke probation; failures to appear in 

court; his flight to avoid arrest after committing the crime; and his high risk to 

reoffend. This appeal ensued.

Discussion and Decision

Issue One: Abuse of Discretion

[4] Smith first contends that the trial court abused its discretion when it sentenced 

him. Generally, sentencing decisions are left to the sound discretion of the trial 

court, and we review its decision only for an abuse of that discretion. Singh v. 

State, 40 N.E.3d 981, 987 (Ind. Ct. App. 2015), trans. denied. “An abuse of 

discretion occurs if the decision is clearly against the logic and effect of the facts 

and circumstances before the trial court.” Id.

One way in which a trial court may abuse its discretion is failing 

to enter a sentencing statement at all. Other examples include 

entering a sentencing statement that explains reasons for 

imposing a sentence—including a finding of aggravating and 

mitigating factors if any—but the record does not support the 

reasons, or the sentencing statement omits reasons that are 

clearly supported by the record and advanced for consideration, 

or the reasons given are improper as a matter of law. Under 

those circumstances, remand for resentencing may be the 

appropriate remedy if we cannot say with confidence that the 
Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2149 | February 27, 2017 Page 4 of 7

trial court would have imposed the same sentence had it properly 

considered reasons that enjoy support in the record.

Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007) (“Anglemyer I”) (internal 

quotation marks and citations omitted), clarified on reh’g, 875 N.E.2d 218 

(“Anglemyer II”).

[5] Smith maintains that the trial court abused its discretion when it identified as an 

aggravating factor the probation department’s assessment that he was at a high 

risk to reoffend. In support of that contention, Smith cites our supreme court’s 

opinion in J.S. v. State, 928 N.E.2d 576, 578 (Ind. 2010), where the court held 

that “the scores produced by . . . offender recidivism risk assessment 

instruments do not function as aggravating or mitigating circumstances for the 

purpose of determining the length of sentence appropriate for each defendant.” 

But, as the State points out, our supreme court in J.S. also held that risk 

assessment scores “may be considered to ‘supplement and enhance a judge’s 

evaluation, weighing, and application of the other sentencing evidence in the 

formulation of an individualized sentencing program appropriate for each 

defendant.’” Id.

[6] We need not decide whether the trial court properly considered Smith’s high 

risk to reoffend because, even if such consideration was improper, “‘when a 

trial court improperly applies an aggravator but other valid aggravating 

circumstances exist, a sentence enhancement may still be upheld.’” Baumholser 

v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016) (quoting Hackett v. State, 716 

N.E.2d 1273, 1278 (Ind. 1999) (internal citations omitted)). Smith does not 
Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2149 | February 27, 2017 Page 5 of 7

challenge the other aggravators identified by the trial court in support of his 

five-year sentence, which is two years more than the advisory sentence for a 

Level 5 felony. Ind. Code § 35-50-2-6(b) (2017). Again, the trial court also 

identified as aggravating: Smith’s criminal history, which includes two felony 

convictions, namely, conspiracy to distribute crack cocaine and criminal 

recklessness, and nine misdemeanor convictions; his multiple failures to appear; 

his multiple probation revocations; his violation of pre-trial release; and the fact 

that he fled to avoid arrest after committing the instant offense. We are 

confident that, had the trial court considered only those proper aggravators, it 

would have sentenced Smith to five years executed. See Anglemyer I, 868 

N.E.2d at 491 (holding remand for resentencing appropriate if we cannot say 

with confidence that the trial court would have imposed the same sentence had 

it properly considered reasons that enjoy support in the record). Accordingly, 

the trial court did not abuse its discretion when it sentenced Smith.

Issue Two: Appellate Rule 7(B)

[7] Smith contends that his five-year sentence is inappropriate in light of the nature 

of the offense and his character. As we have explained:

Indiana Appellate Rule 7(B) permits an Indiana appellate court 

to “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.” We assess the trial court’s 

recognition or nonrecognition 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). The principal role of appellate review is to “leaven 
Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2149 | February 27, 2017 Page 6 of 7

the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 

2008). A defendant must persuade the appellate court that his or 

her sentence has met the inappropriateness standard of review. 

Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).

Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).

[8] Smith asserts that the battery against Ward “is a ‘typical’ offense of battery 

resulting in serious bodily injury” and, thus, the nature of the offense does not 

support an enhanced sentence. Appellant’s Br. at 10. We cannot agree. Smith, 

with no apparent provocation, struck Ward in the head with a liquor bottle, 

which caused Ward to fall down a flight of stairs. Smith then went down stairs 

and struck Ward in the head with the bottle multiple times, fracturing his skull, 

and Smith left the scene without calling 9-1-1. Had Smith merely struck Ward 

in the head once and knocked him down the stairs, that would have been 

sufficient to support the seriously bodily injury enhancement. But Smith did 

not stop there. He continued his battery on Ward. We cannot say that Smith’s 

five-year sentence is inappropriate in light of the nature of the offense.

[9] Smith also maintains that his sentence is inappropriate in light of his character. 

In support of that contention, Smith points out that he pleaded guilty without 

the benefit of an agreement and took responsibility for his actions. And Smith 

cites the evidence that, while he was in jail, he: obtained a certificate of work 

readiness and a certificate of college readiness; attended alcohol abuse classes; 

attended church and bible study classes; and obtained an academic achievement 

award for math and language studies. But, again, as the trial court found, 
Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2149 | February 27, 2017 Page 7 of 7

Smith’s criminal history is significant. Smith has two prior felony convictions 

and nine misdemeanor convictions. He has failed to appear for court hearings 

on multiple occasions over many years, and he has had his probation revoked 

many times. In addition, Smith fled Lafayette and went to Chicago in an 

attempt to avoid arrest after severely battering Ward. While Smith has 

demonstrated a willingness to better himself while in jail for this offense, his

criminal history, lack of respect for court orders, and inability to successfully 

complete probation support an enhanced sentence. We cannot say that Smith’s 

sentence is inappropriate in light of his character.

[10] Affirmed.

Bailey, J., and May, J., concur.