Court of Appeals of Indiana | Memorandum Decision 69A05-1409-CR-439 | February 10, 2015 Page 1 of 8

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

Leanna Weissmann

Lawrenceburg, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Justin F. Roebel

Deputy Attorney General 

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

James Lee,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

February 10, 2015

Court of Appeals Case No.

69A05-1409-CR-439

Appeal from the Ripley Circuit 

Court

The Honorable James B. Morris, 

Judge

Case No. 69C01-1304-FD-64

Crone, Judge.

Case Summary

[1] James Lee appeals his conviction for class D felony domestic battery and his 

sentence of two and a half years. He contends that his conviction is 
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unsupported by sufficient evidence and that his sentence is inappropriate based 

on the nature of the offense and his character. We conclude that sufficient 

evidence supports his conviction and that he has failed to carry his burden to 

persuade us that his sentence is inappropriate. Accordingly, we affirm.

Facts and Procedural History

[2] Lee and S.L. married in January 2008 and lived together in Rexville. One 

evening in February 2013, Lee drove himself home after attending his father’s 

visitation in Vevay. S.L. noticed that Lee was “intoxicated and having trouble 

standing up,” so she “helped him go sit on the couch, so he wouldn’t fall 

down.” Tr. at 214, 248. Lee was “very intoxicated and very upset” about how 

people acted at the visitation. Id. at 214. S.L. told him that she understood 

how he felt because she had lost her father, too. Lee became angry and 

“punched [S.L.] in the stomach three times” and then “double backed his 

elbow” hitting her in the eye. Id. at 214-15. S.L. believed that “it was getting 

out of hand” and went to a different room, where she cried and called a friend. 

Id. at 215. Her friend told her to take a picture of her eye injury. S.L. took a 

photograph of her eye. State’s Ex. 1. S.L.’s friend also advised her to call the 

police, but S.L. did not want to because Lee’s father had just died.

[3] A day or two later, S.L.’s daughter took another picture of S.L.’s eye. State’s 

Ex. 2. S.L. went to stay with a friend because of what happened, and she was 

afraid. After several more days, S.L. returned home to get clothing. Lee was 

there. S.L. told Lee that she “should press charges on him for what he did to 

[her] eye and he still hadn’t apologized.” Tr. at 224. Lee became angry and 
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said, “[Y]ou better think before you do this, you don’t want to f**k with 

somebody who has nothing to lose because if they have nothing to lose, they 

have nothing to lose.” Id. S.L. felt that her life had been threatened, and she 

was afraid. 

[4] S.L. went to the Ripley County prosecutor’s office and spoke to investigator 

Kurt Enneking. He observed that S.L. had a black eye visible through her 

makeup. He showed her how to file a complaint and seek a protective order. 

The following day, S.L. sought and obtained a protective order against Lee. As 

part of his investigation of S.L.’s claim, Enneking called Lee and recorded the 

conversation. State’s Ex. 3. Lee told Enneking that he did not know how S.L. 

got the black eye. Lee also stated, “[S.L.] said that we were wrestling around 

one night and, and that I blacked her eye but I never knew I done anything.” 

Tr. at 315.

[5] The State charged Lee with class A misdemeanor domestic battery and class D 

felony domestic battery with a previous felony conviction. A jury trial was 

held. S.L., her friend, and Enneking testified. The pictures of S.L.’s black eye 

and the recorded phone conversation were submitted. Lee presented no 

evidence. The jury found Lee guilty of class A misdemeanor domestic battery. 

Lee admitted his prior conviction and pled guilty to class D felony domestic 

battery.

[6] At Lee’s sentencing hearing, the trial court found no mitigating factors. The 

trial court found that Lee’s history of alcohol-related offenses and domestic 
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battery were aggravating circumstances. The trial court sentenced Lee to two 

and a half years with one year suspended to probation. Lee appeals.

Discussion and Decision

Section 1 – The evidence is sufficient to support Lee’s 

conviction for domestic battery.

[7] Lee challenges the sufficiency of the evidence supporting his conviction. In 

reviewing claims of insufficient evidence, we consider only the evidence and 

reasonable inferences arising therefrom supporting the conviction without 

reweighing the evidence or judging witness credibility. Henley v. State, 881 

N.E.2d 639, 652 (Ind. 2008). “We will affirm a conviction if there is substantial 

evidence of probative value such that a reasonable trier of fact could have 

concluded the defendant was guilty beyond a reasonable doubt.” Id. “A 

conviction can be sustained on only the uncorroborated testimony of a single 

witness, even when that witness is the victim.” Bailey v. State, 979 N.E.2d 133, 

135 (Ind. 2012).

[8] To convict Lee of class D felony domestic battery, the State was required to 

prove beyond a reasonable doubt that he knowingly or intentionally touched his 

spouse, S.L., in a rude, angry, or insolent manner, which resulted in bodily 

injury to S.L., and that he has a previous felony conviction. Appellant’s App. 

at 18-19; Ind. Code § 35-42-2-1.3. Lee’s sufficiency challenge appears to apply 

to the State’s burden to prove that he knowingly or intentionally touched S.L. 

He argues that the State’s version of the incident was based solely on S.L.’s 
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testimony that he hit her, whereas his statements on the recorded phone 

conversation indicate that he might have accidentally injured her while 

wrestling. Lee urges us to apply the incredible dubiosity rule to S.L.’s 

testimony.

[9] Generally, appellate courts do not judge witness credibility, but we may apply 

the “incredible dubiosity” rule to impinge upon the factfinder’s function to 

judge witness credibility. Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007). 

Under the incredible dubiosity rule,

[i]f a sole witness presents inherently improbable testimony and there 

is a complete lack of circumstantial evidence, a defendant’s conviction 

may be reversed. This is appropriate only where the court has 

confronted inherently improbable testimony or coerced, equivocal, 

wholly uncorroborated testimony of incredible dubiosity. Application 

of this rule is rare and the standard to be applied is whether the 

testimony is so incredibly dubious or inherently improbable that no 

reasonable person could believe it.

Love v. State, 761 N.E.2d 806, 810 (Ind. 2002) (citations omitted). 

[10] Lee asserts that S.L.’s testimony that he punched her in the stomach and 

elbowed her eye is inherently improbable in light of her testimony that he was 

so drunk that he was staggering and she had to help him to the couch. We 

disagree. Unfortunately, it is not uncommon for someone who is very 

intoxicated to strike out at someone. The fact that Lee had difficulty keeping 

his balance does not mean that he was incapable of knowingly or intentionally 

hitting S.L. while they were sitting on the couch. We conclude that S.L.’s 

testimony was not incredibly dubious and that her testimony provides sufficient 
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evidence that Lee knowingly and intentionally touched her in an angry manner. 

Therefore, we affirm his conviction for class D felony battery. 

Section 2 – Lee’s sentence is not inappropriate.

[11] Lee contends that his sentence is inappropriate pursuant to Indiana Appellate 

Rule 7(B), which states, “The 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.” When reviewing a sentence, our principal role is to leaven the 

outliers rather than necessarily achieve what is perceived as the correct result. 

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “We do not look to 

determine if the sentence was appropriate; instead we look to make sure the 

sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 

2012). Lee has the burden to show that his sentence is inappropriate. 

Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 

218.

[12] Turning first to the nature of the offense, we observe that “the advisory sentence 

is the starting point the Legislature selected as appropriate for the crime 

committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). Lee was 

convicted of a class D felony, which has an advisory sentence of one and a half 

years and a sentencing range of six months to three years. Ind. Code § 35-50-2-

7. Lee received a sentence of two and a half years. Lee contends that the 

nature of the crime was that “a bereaved, drunken man injured his wife in the 
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hours after coming home from his father’s visitation.” Appellant’s Br. at 11. 

Lee’s argument ignores that S.L. was trying to console him when he punched 

her in the stomach three times and elbowed her in the eye. He also threatened 

her when she told him that she should report the incident. We are unpersuaded 

that the nature of the crime renders Lee’s sentence inappropriate.

[13] As for Lee’s character, he argues that he suffers from serious medical 

conditions, completed an alcohol rehabilitation program, and is helping his 

sister care for their brother who has Parkinson’s disease. We fail to discern any 

link between Lee’s medical conditions and his character for purposes of 

reviewing the appropriateness of his sentence. Although Lee successfully 

completed a ten-week treatment program for alcohol addiction, we note that 

after he finished that program he committed the current offense as well as class 

A misdemeanor operating while intoxicated. He has two additional 

convictions for class A misdemeanor operating while intoxicated and a 

conviction for class D felony operating while intoxicated. Of particular concern 

is that he has a 2008 conviction for class A misdemeanor domestic battery. 

Despite numerous past encounters with the justice system, Lee has not 

reformed his behavior, which does not reflect well on his character. Lee points 

to nothing in the record regarding the care of his brother other than his selfserving statement that he does so. We conclude that Lee has failed to carry his 

burden to show that his sentence is inappropriate based on the nature of the 

offense and his character. 
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[14] Based on the foregoing, we affirm Lee’s conviction and sentence for class D 

felony domestic battery.

[15] Affirmed.

Friedlander, J., and Kirsch, J., concur.