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: ATTORNEYS FOR APPELLEE:

THOMAS D. SARVER GREGORY F. ZOELLER

Goebel Law Office Attorney General of Indiana 

Crawfordsville, Indiana

ANDREW FALK

Deputy Attorney General 

Indianapolis, Indiana 

IN THE

COURT OF APPEALS OF INDIANA

ERNEST P. GLASS, )

)

Appellant-Defendant, )

)

vs. ) No. 54A04-1210-CR- 552

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MONTGOMERY SUPERIOR COURT

The Honorable Peggy Q. Lohorn, Judge

Cause No. 54D02-1208-FB-3356

54D02-1208-CM-3189

May 23, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Chief Judge
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Case Summary and Issues

Ernest P. Glass appeals his conviction and sentence for battery, a Class A 

misdemeanor, as well as revocation of his probation. Glass presents four restated issues 

on appeal: 1) whether sufficient evidence supported his conviction; 2) whether the trial 

court erred when setting Glass’s bond; 3) whether his sentence was inappropriate in light 

of his character and the nature of the offense; and 4) whether the trial court abused its 

discretion in revoking his probation. Concluding that there was sufficient evidence to 

support his conviction, his bond argument is moot, his sentence is not inappropriate, and 

the trial court did not abuse its discretion in revoking his probation, we affirm. 

Facts and Procedural History

In 2007, Glass was charged with five counts, including possession of marijuana, a 

Class D felony, and battery, a Class A misdemeanor. In February 2008 it was alleged 

that Glass was an habitual offender, and that same month Glass pleaded guilty to the 

possession and battery charges and was determined to be an habitual offender; the 

remaining counts of the information were dismissed. In March 2008, Glass was 

sentenced to one year for the battery, with time served and with a domestic violence fee 

assessed, and four years for the possession, with two years executed and two years 

suspended to probation. Glass violated probation twice, in 2010 and 2011—the 2010 

violation stemming from a conviction for battery—and both times the court returned him 

to probation. Glass was still on probation in August 2012.

On August 18, 2012, Glass was living with Krystal Harwood, whom he had 

known for several years, had been living with for around a year, and with whom he 

possibly had a child. The week before, Glass and Harwood had fought when Glass 
3

accused Harwood of stealing his medication, and Glass had threatened to have 

Harwood’s child(ren) taken away. Glass agreed to move out of the house, and was 

packing his things and waiting for a ride when he and Harwood argued again on August 

18, 2012. Harwood’s grandparents were at the house at the time. The argument 

escalated to a physical confrontation, and eventually Glass called 911. Officers with the 

Montgomery County Sheriff’s Department responded, investigated and spoke with the 

people present, gave Glass a statement form, and ended up arresting Glass.

On August 21, 2012, a petition was filed to revoke Glass’s probation. On August 

23, 2012, Glass was charged with battery as a Class A misdemeanor, and bond was set at 

$600. On August 31, a hearing was held, and Glass requested a reduction in the bond 

related to the battery charge, and also requested that bond be set in the probation 

revocation matter. Both requests were denied.

On October 5, 2012, a bench trial was held on the battery charge and at the same 

time the trial court conducted a hearing on the probation revocation petition. The court 

found Glass guilty of battery as a Class A misdemeanor and sentenced him to 270 days. 

The court also found that Glass had violated his probation, and revoked 408 days of his 

probation, to be served in the Indiana Department of Correction, consecutive to his 

sentence for battery. This appeal followed. Additional facts will be supplied as 

necessary. 
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Discussion and Decision

I. Sufficiency of the Evidence 

A. Standard of Review

The standard for reviewing sufficiency of the evidence claims is well settled. We 

do not reweigh the evidence or assess the credibility of the witnesses. West v. State, 755 

N.E.2d 173, 185 (Ind. 2001). Rather, we look to the evidence and reasonable inferences 

drawn therefrom that support the verdict and will affirm the conviction if there is 

probative evidence from which a reasonable trier-of-fact could have found the defendant 

guilty beyond a reasonable doubt. Id. When a defendant challenges the sufficiency of 

the evidence rebutting a claim of self-defense, our standard of review is the same as for 

any sufficiency of the evidence claim. Hood v. State, 877 N.E.2d 492, 497 (Ind. Ct. App. 

2007), trans. denied. 

B. Battery

Glass first argues that there was insufficient evidence to support a conviction for 

battery. To prevail on the battery charge in this case, the State needed to prove that Glass 

“knowingly or intentionally touche[d] another person in a rude, insolent, or angry 

manner” and that the offense resulted “in bodily injury to any other person.” Ind. Code § 

35-42-2-1. “Bodily injury” is defined as “any impairment of physical condition, 

including physical pain.” Ind. Code § 35-31.5-2-29. 

Glass does not directly challenge the evidence supporting any particular element 

of the battery charge, but rather recounts inconsistent and conflicting testimony, and 

argues that some of the photographic evidence presented at trial is of poor quality or not 

well connected to the effect on the victim. In essence, Glass invites us to reweigh the 
5

evidence and assess witness credibility, which we cannot do. Evidence was presented at 

trial that Glass, among other things, shook and hit Harwood, grabbed her hair and ripped 

some hair out, and threw her onto the bed and the floor. Harwood testified that she had 

various bruises and sores as a result of the incident, as well as a knot on her head that 

caused her pain for approximately two weeks. There was sufficient evidence presented 

from which the trier-of-fact could determine that Glass committed battery against 

Harwood.

C. Self-Defense

Next, Glass argues that there was insufficient evidence presented by the State to 

rebut his claim of self-defense. Self-defense is established if a defendant: (1) was in a 

place where the defendant had a right to be; (2) did not provoke, instigate, or participate 

willingly in the violence; and (3) had a reasonable fear of death or great bodily harm. 

Brand v. State, 766 N.E.2d 772, 777 (Ind. Ct. App. 2002), trans. denied. “Furthermore, 

an initial aggressor must withdraw from the encounter and communicate the intent to do 

so to the other person before he or she may claim self-defense.” Huls v. State, 971 

N.E.2d 739, 747 (Ind. Ct. App. 2012), trans. denied. The State carries the burden of 

disproving self-defense. Brand, 766 N.E.2d at 777. Therefore, once a defendant claims 

self-defense, the State bears the burden of disproving at least one of the elements beyond 

a reasonable doubt. Id. The State may meet its burden of proof by rebutting the defense 

directly, by affirmatively showing that the defendant did not act in self-defense, or by 

simply relying upon the sufficiency of its evidence in chief. Id.

Here, the State does not contest that Glass established that he had a right to be in 

the house at the time of the incident, or that he had a reasonable fear of death or great 
6

bodily harm.1 The element of self-defense that is at issue is whether Glass provoked or 

willingly participated in the violence. Glass argues that his “testimony and written 

statement are consistent with his argument for self-defense against Ms. Harwood.” Brief 

of Appellant at 20. Here, Glass again invites us to reweigh the evidence, which we 

cannot do. Testimony was presented in support of Glass’s contention that he did not 

provoke the incident, but other testimony indicated that he did provoke the violence. 

Whether one believes that Glass provoked or willingly participated in the violence—or 

withdrew, if he was the initial aggressor—depends on a determination of witness 

credibility and the weighing of evidence. There was probative evidence from which a 

reasonable trier-of-fact could determine that Glass’s claim of self-defense was rebutted 

beyond a reasonable doubt.

II. Bond

Glass next argues that the trial court abused its discretion when it declined to 

reduce his bond for the battery charge or set bond for the probation revocation matter. 

We agree with the State that this argument is moot. 

Glass cites to Indiana Code section 35-38-2-3(d), which states, regarding 

probation violations: 

Except as provided in subsection (e), the court shall conduct a hearing 

concerning the alleged violation. The court may admit the person to bail 

pending the hearing. A person who is not admitted to bail pending the 

hearing may not be held in jail for more than fifteen (15) days without a 

hearing on the alleged violation of probation.

 

1

 Apparently, during the incident, Harwood grabbed Glass by the testicles and squeezed, and may have 

shoved him into a dresser. 
7

Glass is correct that the statute requires a hearing to be held within fifteen days when 

bond is not set for an alleged violator, and that Glass was held for more than fifteen days 

before a hearing. However, Glass admits that denial of bond is a final appealable order, 

but states that he does not know why counsel did not appeal at the time. Glass does not 

provide a cogent argument for why we should take up the question now.

The State cites to two cases—Carter v. State, 451 N.E.2d 639, 642 (Ind. 1983), 

and Partlow v. State, 453 N.E.2d 259, 274 (Ind. 1983), cert. denied, 464 U.S. 1072—for 

the proposition that the issue of bail pending trial is moot when presented on appeal after 

the defendant has been convicted and sentenced. Glass argues that Partlow is inapposite 

because the court in that case noted that murder is not a bailable offense. See 453 N.E.2d 

at 274. However, that was only one part of the court’s reasoning in determining that the 

argument was moot; the court also noted that the defendant had already been convicted 

and sentenced. Id. Glass also argues that both cases are distinguishable because both 

involved felony charges, whereas Glass was charged with a misdemeanor. Glass implies 

that we should be more open to considering bond in this case because “the time table for 

setting a trial in a misdemeanor is much shorter than the time for a felony trial.” 

Appellant’s Reply Brief at 2. On the contrary, it seems to us that spending less time in 

jail without bond before a hearing was held only lessens any harm that was done.

In his reply brief, Glass cites to Indiana Code section 35-33-8-3.2(d), which relates 

to fees collected from bonds, without a clear explanation of how that statute applies to his 

case. Glass also points out that, prior to July 2012, Indiana Code section 35-38-2-3(d) 

did not require a hearing within fifteen days, and argues that the newness of the law 

makes it a matter of great public interest and an issue we should review. We disagree. If 
8

anything, the addition of a provision requiring a hearing within fifteen days only set a 

more definite time table for filing an appeal when Glass’s bond was initially denied and a 

hearing did not take place within fifteen days. It does not alleviate the mootness of the 

issue now that a hearing has been held and Glass has been sentenced. 

III. Appropriateness of Sentence

A. Standard of Review

We are empowered by Indiana Appellate Rule 7(B) to revise a sentence “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.” The 

burden is on the defendant to persuade us that his sentence has met this inappropriateness 

standard of review. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). When 

conducting this inquiry, we may look to any factors appearing in the record. Roney v. 

State, 872 N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied. In reviewing a sentence 

under Appellate Rule 7(B), the question “is not whether another sentence is more

appropriate; rather, the question is whether the sentence imposed is inappropriate.” King 

v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original).

B. Glass’s Sentence

Glass conflates our review of the appropriateness of a sentence under Indiana 

Appellate Rule 7(B) and our review of a trial court’s discretion in setting a sentence. 

However, Glass appears to focus his argument on the idea that his sentence of 270 days is 

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

note that under Rule 7(B), we may only revise a sentence where the original sentence is 

inappropriate in light of the nature of the offense and the character of the offender.
9

While there was no presentence investigation report in this matter, it is clear from 

the record that Glass was on probation at the time of the battery at issue, that he had 

several probation violations in the past, that he had been convicted of battery before—

apparently a battery of a domestic nature, and that he had other convictions on his record 

as well. As the State points out, “due to the fact that Defendant was found to be a 

habitual offender, he necessarily must have been found guilty previously of at least two 

unrelated felonies.” Brief of Appellee at 16. The State also notes that Harwood’s 

testimony implied that Glass may have hurt her in the past, as she testified that she called 

her grandmother to come over that morning because “usually if my grandma’s there . . . 

he won’t put his hands on me.” Transcript at 41. As to the nature of the offense, 

Harwood testified to the injuries she received and that she was in pain for approximately 

two weeks following the incident. It is clear that the trial court took into consideration 

the mitigating factors provided by Glass, and the trial court sentenced him to less than the 

full year that was possible for a Class A misdemeanor. See Ind. Code § 35-50-3-2. We 

cannot say that Glass’s sentence was inappropriate in light of his character and the nature 

of the offense.

IV. Revocation of Probation

A. Standard of Review

Probation is a matter of grace left to trial court discretion, not a right to 

which a criminal defendant is entitled. The trial court determines the 

conditions of probation and may revoke probation if the conditions are 

violated. Once a trial court has exercised its grace by ordering probation 

rather than incarceration, the judge should have considerable leeway in 

deciding how to proceed. If this discretion were not afforded to trial courts 

and sentences were scrutinized too severely on appeal, trial judges might be 

less inclined to order probation to future defendants. Accordingly, a trial 

court’s sentencing decisions for probation violations are reviewable using 
10

the abuse of discretion standard. An abuse of discretion occurs where the 

decision is clearly against the logic and effect of the facts and 

circumstances. 

Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (citations omitted).

B. Revocation of Glass’s Probation

Finally, Glass briefly argues that the trial court abused its discretion in revoking 

his probation. We disagree. This was at least the third time that Glass had violated 

probation, with the court having returned him to probation on the previous two occasions. 

That was within the court’s discretion, as was deciding to revoke Glass’s probation upon 

this most recent violation. The court’s decision to revoke Glass’s probation was not 

clearly against the logic and effect of the facts and circumstances. 

Conclusion

Concluding that there was sufficient evidence to support Glass’s conviction for 

battery, that his bond argument is moot, that his sentence is not inappropriate, and that the 

trial court did not abuse its discretion in revoking his probation, we affirm. 

Affirmed.

FRIEDLANDER, J., and CRONE, J., concur.