Court of Appeals of Indiana | Memorandum Decision 18A-CR-2735 | June 5, 2019 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

Mark Small

Indianapolis, Indiana 

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Caryn N. Szyper

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Lisiate U. Tavake,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 5, 2019

Court of Appeals Case No.

18A-CR-2735

Appeal from the Montgomery 

Circuit Court

The Honorable Harry A. Siamas, 

Judge

Trial Court Cause No.

54C01-1804-F5-999

Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2735 | June 5, 2019 Page 2 of 7

[1] Lisiate U. Tavake (“Tavake”) was convicted in the Montgomery Circuit Court 

of Level 6 felony battery resulting in moderate bodily injury. Tavake now 

appeals arguing that the evidence was insufficient to support his conviction. 

[2] We affirm. 

Facts and Procedural History 

[3] On April 9, 2018, Tavake and Dakota Mills (“Mills”) were inmates in the “G” 

pod housing unit at the Montgomery County Jail. The night of the incident, the 

pod held 17 inmates. Each inmate has a mat or pallet on his bed on which to 

sleep. However, Mills had put his mat on the floor in order to help him sleep 

better, which he had previously done multiple times. 

[4] Mills had no disagreements or conflicts with Tavake and had not 

communicated with Tavake all morning besides asking Tavake for help to 

better understand the Bible. Around 2:20 a.m., Mills walked around the pod for 

a few minutes because he said he “was coming off of drugs . . . and [] did not 

feel well at the time.” Tr. p. 52. No one in the pod was awake, and after 

walking around for a few minutes, Mills returned to his mat on the floor to 

sleep. 

[5] Without warning, Tavake punched Mills in the head and kicked him in the 

chest and face. Mills screamed, which Cody Swick (“Deputy Swick”), jail 

deputy at the Montgomery County Sheriff’s Department, heard and described 

the noise coming from “G” pod as “loud screaming or screech, sound of 

distress.” Id. at 79. After striking Mills over 20 times, Tavake told Mills to “get 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2735 | June 5, 2019 Page 3 of 7

on the button.”1 Id. at 54. Mills pushed the button, and Deputy Swick 

responded. Deputy Swick observed that Mills was heavily breathing, bleeding, 

bruised, frightened, and “obviously beaten,” so Mills was removed from the 

pod. Id. at 80.

[6] Deputy Swick examined Mills and reported that Mills’s ear was purple, with a 

large cut behind it. Mills also had lumps on the back of his head. Mills 

identified Tavake as the one responsible for his injuries. Id. at 52. 

Approximately ten minutes after the incident, Mills told Deputy Swick he was 

punched four times on the left side of his head. Id. at 64.

[7] After taking Mills out of the pod to go see the county jail nurse, Deputy Swick 

returned to the pod and examined Tavake’s hands. Deputy Swick described 

Tavake’s hands as red, swollen, and blood-smeared. Deputy Swick also noticed 

a bloodied towel near Tavake’s bed. Id. at 82–83. After looking at Tavake’s 

hands and taking photographs, jail personnel placed Tavake in handcuffs. The 

attack was captured by the jail’s infrared surveillance camera system. Captain 

Lonnie Jones (“Captain Jones”) of the Montgomery County Sheriff’s 

Department was the jail commander and testified he was familiar with both the 

video surveillance system in the jail and with Tavake. Captain Jones identified 

the man in the video hitting and kicking Mills as Tavake. Id. at 92.

 

1 “Get on the button” refers to when an inmate needs to communicate to the jail staff that he needs to be 

removed from the pod.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2735 | June 5, 2019 Page 4 of 7

[8] Mills’s injuries were photographed, and the photographs show that his mouth 

was bloody; his left ear was badly bruised and cut; and he had a few grape-sized 

bumps on the back of his head. Mills also reported his pain level was a seven 

out of ten, with ten being the highest. Id. at 54–58, 72–73, 80–83, 102; Ex. Vol., 

State’s Exs. 2A–2J. Shortly thereafter, Mills was transported to the local 

hospital for treatment, and the treating emergency room physician, Dr. Ryan 

Weakley (“Dr. Weakley”), determined that Mills had sustained multiple 

contusions, scalp hematomas, shoulder strain, and chest contusions, but that he 

had no fractures. Tr. pp. 100–05; Ex. Vol., State’s Exs. 4–5. Dr. Weakley 

testified in his deposition that Mills rated his pain as seven out of ten on a zero 

out of ten pain scale and described that level as being substantial pain. Tr. pp. 

100–102. Mills stayed in the emergency room for a little over an hour and 

received ice packs to be applied to the back of his head and the left side of his 

face. He was discharged with a recommendation for over-the-counter pain 

control medication. Id. at 109-10.

[9] On April 13, 2018, the State charged Tavake with Level 6 felony battery 

resulting in moderate bodily injury.2 A one-day jury trial commenced on 

November 13, 2018. At trial, Tavake argued that Mills’s description of his 

injuries was not consistent with what he had told Deputy Swick at the jail 

shortly after the incident and the video did not clearly show that Tavake was 

 

2 Tavake was charged with battery as a Level 5 felony (Count 1) and battery as a Level 6 felony (Count 2). 

Appellant’s App. Vol. 2, p. 11. On November 5, 2018, the State sought to dismiss Count 1, and the State’s 

motion was granted. Id. at 6–7.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2735 | June 5, 2019 Page 5 of 7

the person who attacked Mills in the pod. Tavake was found guilty as charged. 

On November 13, 2018, the trial court sentenced Tavake to two years executed 

in the Indiana Department of Correction with no days credit for time served. 

Tavake now appeals. 

Discussion and Decision 

[10] Tavake contends that the evidence is insufficient to sustain his conviction. 

When reviewing a claim of insufficient evidence to sustain a conviction, we 

consider only the probative evidence and reasonable inferences supporting the 

verdict. Jackson v. State, 50 N.E.3d 767, 770 (Ind. 2016). In this case, the jury 

was the fact-finder. It is the fact-finder’s role, not ours, to assess witness 

credibility and weigh the evidence to determine whether it is sufficient to 

support a conviction. Id. We will affirm the conviction unless no reasonable 

fact-finder could have found the elements of the crime proven beyond a 

reasonable doubt. Id. It is therefore not necessary that the evidence overcome 

every reasonable hypothesis of innocence; rather, the evidence is sufficient if an 

inference may reasonably be drawn from it to support the verdict. Drane v. State,

867 N.E.2d 144, 147 (Ind. 2007).

[11] At the time of Tavake’s Level 6 felony battery resulting in moderate bodily 

injury conviction, the State had to show that Tavake: (1) knowingly or 

intentionally; (2) touched Dakota Mills; (3) in a rude, insolent, or angry 

manner; (4) which resulted in moderate bodily injury to Mills. Ind. Code § 35-
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2735 | June 5, 2019 Page 6 of 7

42-2-1(e)(1). Tavake argues that there was insufficient evidence to support the 

conclusion that he was the person who attacked Mills. We disagree.

[12] Mills testified that Tavake struck and kicked him repeatedly about the head and 

body on April 9, 2018. Tr. pp. 52–53. Mills also testified that as a result of 

Tavake’s actions, he sustained injuries to the mouth, ear, and bumps on the 

back of his head and was in great pain. Id. at 55. Additionally, Deputy Swick 

testified that he heard loud screaming and sounds of distress coming from “G” 

pod where Mills and Tavake were housed and described Mills as “frightened 

and obviously beaten.” Id. at 80. Further, Deputy Swick observed blood on 

Tavake’s hand and a bloodied towel near Tavake’s bed. Id. at 85. Moreover, 

Captain Jones identified Tavake as the person on the video surveillance system 

hitting and kicking Mills, who was sleeping on his mat on the floor. Id. at 93. 

[13] Tavake argues that the video of the incident was grainy and it was not clear that 

Tavake was the one hitting and kicking Mills. Tavake further argues that the 

photograph of his hands that was admitted at trial does not show any blood or 

visible injuries on them. Additionally, Tavake claims Mills’s testimony is 

incredible because Mills changed his statement about how many times he was 

hit and kicked.

[14] Mills unequivocally testified that Tavake attacked him. Captain Jones identified 

Tavake as the person who attacked Mills in the infrared video that was 

admitted at trial. Tavake’s argument to the contrary is nothing more than a 

request for us to reweigh the evidence on appeal, which we will not do. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2735 | June 5, 2019 Page 7 of 7

Conclusion

[15] Based on the facts and circumstances before us, the evidence presented to the 

jury was sufficient to sustain Tavake’s conviction. Accordingly, we affirm his 

Level 6 felony battery conviction. 

May, J., and Brown, J., concur.