Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Oct 22 2014, 9:45 am
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:
BRYAN M. TRUITT GREGORY F. ZOELLER
Bertig & Associates, LLC Attorney General of Indiana
Valparaiso, Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BENJAMIN WILLIS, II, )
)
Appellant-Defendant, )
)
vs. ) No. 64A03-1401-CR-30
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE PORTER SUPERIOR COURT
The Honorable Roger V. Bradford, Judge
Cause No. 64D01-1203-FA-2648
October 22, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Benjamin Willis, II, appeals his conviction and sentence for battery as a class A
felony. Willis raises two issues, which we revise and restate as:
I. Whether the evidence is sufficient to sustain his conviction; and
II. Whether the court erred in sentencing him.
We affirm.
FACTS AND PROCEDURAL HISTORY
On March 8, 2012, Sasha Sabates was living in Willis’s home with her young
children R.O. and K.F, born August 17, 2011. At approximately 11:30 a.m., Sabates
prepared a bath for her sons. During the bath, K.F. slipped and fell in the tub and hit his
head on the faucet. After she bathed the boys, Sabates brought K.F. to his room and began
to put him down for a nap. Sabates observed that K.F. was playing with toys and was
saying mama prior to his nap. She thought that K.F. was acting “perfectly normal” at that
time. Trial Transcript at 172. She prepared a bottle, and K.F. drank it and fell asleep
midway through the feeding. She observed that K.F. fell asleep normally and was sleeping
on the middle of a pillow in the crib. After K.F. had fallen asleep, Sabates took R.O. into
the master bathroom with her while she took a shower. While Sabates was showering,
Willis was in the master bedroom sleeping, and at one point Willis told Sabates that the
dogs were barking.
Sabates exited the shower, wrapped herself in a towel, and went to the door to check
on the dogs. She noticed that the dogs were outside and encountered Willis’s mother,
Sharon, who walked into the home and was looking for Willis. Sharon followed Sabates
back to the bedroom. Sharon woke up Willis and discussed with him some custody issues
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he was having with the mother of his daughter. Willis then took a shower, dressed, and
left to buy soda and cigarettes at a nearby convenience store.
Once Willis returned home, Sharon decided to leave, and Sabates returned to the
bathroom to apply makeup and “finish doing her hair.” Id. at 187. At that point, Sabates
was unsure if either Willis or Sharon was in the home. She looked at a clock in the master
bedroom and noticed that it was about 2:00 p.m., which was the time K.F. normally woke
from his naps, but “[she] didn’t hear anything on the baby monitor.” Id. at 188. Sabates
was preparing another bottle when Willis came into the house and said he heard K.F.
crying, although Sabates did not hear crying. Sabates stopped preparing the bottle, peeked
into K.F.’s room to check on him and did not hear crying. After Sabates finished making
the bottle, she returned to K.F.’s room to check on him again, and she “immediately noticed
that he was more paler [sic] than usual. He had vomit everywhere. And [she] noticed that
he was slightly pushed off [the pillow] more into the crib than usual.” Id. at 191. Sabates
observed that K.F.:
wasn’t [breathing.] [She] looked at him and he made like a, it was a real
quick like, uh, uh, uh, like this (indicating). And his eyes were like slightly
shut. And they were dilated. [She] immediately noticed something was
wrong, because when [she] picked him up [] he just flopped.
Id. at 192. Sabates noticed that K.F.’s head was “all mush.” Id. at 193. She stated that the
“back of his head . . . was concaved, or it was curved outwards. And . . . there was no
hardness in the back of his head, at all.” Id. She ran outside where she found Willis picking
up dog feces and told him to call 911. Willis called 911 from a neighbor’s house. Detective
Darryl Henson responded to the scene and observed that Willis’s demeanor lacked
emotion. Eventually, the ambulance arrived and took K.F. to Porter Hospital, and he was
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later airlifted to Riley Hospital for Children in Indianapolis for more tests. When Willis
was interviewed by the Detectives, he told them that while Sabates was showering and he
was in bed he “rolled over and noticed that the monitor was lit up, and he heard [K.F.]
fussing,” that he let Sabates know and that Sabates said she would take care of K.F. after
she finished her shower. Id. at 568. K.F. was pronounced dead on March 10, 2012, after
two days in the hospital.
On March 16, 2012, the State charged Willis in a five count information with: Count
I, neglect of a dependent as a class A felony; Count II, battery as a class A felony; Count
III, battery as a class D felony; Count IV, torturing or mutilating a vertebrate animal as a
class D felony; and Count V, cruelty to an animal as a class A misdemeanor. On February
4, 2013, the court severed Counts IV and V.1 On November 12, 2013, the court
commenced a jury trial on Counts I through III at which the State presented the testimony
of, among others, Dr. Ralph A. Hicks, Sabates, Dr. Ken Obenson, Sharon, and Detective
Eric Jones.
Dr. Hicks testified that his review of K.F.’s medical records indicated that K.F. fell
into a faucet in the bathtub on the day in question but that “[his] understanding was [that
K.F.] was sitting in the tub and then leaned or fell into the faucet, but . . . that would not
have been, or provided sufficient force to cause the head injuries that he had” because “a
baby who falls over from a sitting position in a bathtub is not going to fall with enough
force to cause a life-threatening internal injury.” Id. at 73-74. In concluding his direct
1
The severed charges were related to Willis’s treatment of his dogs and, potentially, another
person’s dog.
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testimony, Dr. Hicks stated that “[he] fe[lt] that the injuries [K.F.] sustained were non-
accidental, or abusive in nature. . . . [T]he pattern of injuries, the type of injuries were
characteristic of abusive head trauma. There wasn’t any history of anything from the
medical evaluation to suggest any alternative explanation.” Id. at 78-79.
Sabates testified to facts consistent with the foregoing, and, with respect to a slip or
fall that occurred earlier that day while Sabates was bathing K.F., she stated:
[She] ben[t] down to pick up the towel and [she] wrap[ped] it here and
pull[ed] him out. And when [she] [went] to pull out [K.F.], he d[id] like a,
he lean[ed] forward and then to the side. It wasn’t, there was water still in
the tub. He didn’t hit anything. No crying. No nothing. So [she] pick[ed]
him up and then [she] wrap[ped] him up in a towel and then [she] [went] to
the boys’ bedroom.
Id. at 166. Sabates also testified that she could not recall whether K.F. bumped his head or
not. She also indicated that she did not drop K.F., that K.F. did not fall out of her arms,
and that K.F. did not “squirm to get away.” Id. at 169.
The State heard testimony from Dr. Ken Obenson, a forensic pathologist, who
indicated that the cause of death was “[b]lunt force trauma to the head.” Id. at 394. Dr.
Obenson also testified that the manner of K.F.’s death was “[h]omicide.” Id. Willis’s
mother, Sharon, testified during the trial to a version of the events leading up to the incident
that was consistent with Sabates’s description. Detective Jones, who spoke with both
Sabates and Willis, also testified consistent with Sabates’s testimony. Detective Jones
indicated that the timeline Sabates provided for that day did not change during the
investigation. He also interviewed Willis to verify Sabates’s version of events, and the
timeline provided by Willis was consistent with the one provided by Sabates.
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On November 15, 2013, the jury found Willis guilty of Count I, neglect of a
dependent as a class A felony, and Count II, battery as a class A felony, and not guilty of
Count III, battery as a class D felony. On December 16, 2013, the court held a sentencing
hearing. During the hearing, the State argued that the court should consider three
aggravating factors: (1) the victim was under twelve; (2) Willis committed a crime of
violence knowing that a person under eighteen was present; and (3) Willis was in a position
of trust with respect to the victim. Willis’s counsel argued that the first aggravator, age,
was an element of the offense and should receive minimal weight. His counsel further
argued that, as to the second aggravator, there was “no evidence whatsoever that this
offense [was committed] in front of, in the presence of this other minor child.” Sentencing
Transcript at 40. Willis’s counsel also stated that “the preparer of the pre-sentence report
has failed to list any mitigators” and argued Willis had “no history or minimal history with
regards to criminal activity.” Id. at 41. His counsel explained that, as to other criminal
activity, the charges involved “a pending matter in Lake County . . . that was . . . going to
be dismissed.” Id. at 41-42. He stated that because this conviction was Willis’s “first
conviction, including juvenile adjudications,” his lack of prior criminal history should be
a mitigator. Id. at 42. Counsel also argued that Willis’s imprisonment would lead to
hardship for his daughter and for his mother and should be considered as a mitigator.
Counsel further argued that Willis’s sentence should be suspended and argued that he be
placed on probation.
After reviewing the presentence report, the court stated that even though “age [was]
an element of the offense . . . the extremely young age of the victim” supported the court’s
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decision that age was an aggravator. Id. at 44. The court found the fact that Willis stood
in a position of trust with respect to the victim was an aggravator, but it did not give “strong
weight” to Willis having committed the crime in the presence of a person under age
eighteen. Id. As to the proposed mitigators, the court stated that “he doesn’t have as much
a history of criminal activity as other defendants this court sees” but observed that the two
other counts under the charging information that had been severed for trial were “also
criminal activity.” Id. at 44-45. As a result, the court stated that to find lack of criminal
history as a mitigator “would be incorrect and I do not find that.” Id. at 45. As to support
of a dependent as a proposed mitigator, the court did not find that as a mitigator.
In the sentencing order, the court stated that “by law, the two (2) guilty verdicts be
merged” and it entered “judgment of conviction on Count II, Battery, Class A Felony.”
Appellant’s Appendix at 188. The order further stated:
The Court finds as aggravating circumstances: 1) the extreme young age of
the victim; and 2) that Defendant was in a position of trust. The Court finds
no mitigating circumstances. The Court begins with the advisory sentence
of thirty (30) years. The Court finds that the aggravating outweigh the
mitigating circumstances and adds ten (10) years for a total sentence of forty
(40) years in the Indiana Department of Correction. None of the sentence is
suspended.
Id.
DISCUSSION
I.
The first issue is whether the evidence is sufficient to sustain Willis’s conviction for
battery as a class A felony. When reviewing claims of insufficiency of the evidence, we
do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656
7
N.E.2d 816, 817 (Ind. 1995), reh’g denied. Rather, we look to the evidence and the
reasonable inferences therefrom that support the verdict. Id. We will affirm the conviction
if there exists evidence of probative value from which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt. Id.
Willis contends that the incredible dubiosity rule applies and that reversal is
warranted on that basis. In Willis’s Summary of the Argument section of his brief, he
makes the following assertions without citation to the record or authority: “there are severe
problems with Sabates’s testimony. She is inconsistent with her statements to the
police. She is inconsistent with her confidences in friends. Her account violates any
concept of common sense. Her testimony is simply incredibly dubious.” Appellant’s Brief
at 6. Willis asserts that “[e]ven should this Court reject the obvious dubiosity of [Sabates’s]
testimony, the State’s theory does not meet common sense” and that “there is still
reasonable doubt as to [his] guilt, under any standard of review.” Id. In the Argument
section of the brief, however, beyond discussing the standard of review applicable to
insufficiency of the evidence and boilerplate statements of law regarding the incredible
dubiosity rule, the brief contains merely the heading “SABATES [sic] TESTIMONY WAS
INCREDIBLY DUBIOUS” followed by a single sentence: “In this case, the only recount
of the events on March 7-8, 2012 come [sic] from the testimony of Sabates.” Id. at 8.
Willis does not develop a cogent argument or cite to the record, and accordingly this issue
is waived. See Johnson v. State, 675 N.E.2d 678, 681 n.1 (Ind. 1996) (observing that the
defendant failed to cite to the record and “[o]n review, this Court will not search the record
to find grounds for reversal”); Keller v. State, 549 N.E.2d 372, 373 (Ind. 1990) (holding
8
that a court which must search the record and make up its own arguments because a party
has presented them in perfunctory form runs the risk of being an advocate rather than an
adjudicator); see also Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006) (holding that
the defendant’s contention was waived because it was “supported neither by cogent
argument nor citation to authority”); Shane v. State, 716 N.E.2d 391, 398 n.3 (Ind. 1999)
(holding that the defendant waived argument on appeal by failing to develop a cogent
argument); Ind. Appellate Rule 46(A)(8)(a) (“The argument must contain the contentions
of the appellant on the issues presented, supported by cogent reasoning. Each contention
must be supported by citations to the authorities, statutes, and the Appendix or parts of the
Record on Appeal relied on, in accordance with Rule 22.”).
Waiver notwithstanding, we note that the incredible dubiosity rule applies only in
very narrow circumstances. See Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). The rule
is expressed as follows:
If 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.
Id. The function of weighing witness credibility lies with the trier of fact, not this court.
Whited v. State, 645 N.E.2d 1138, 1141 (Ind. Ct. App. 1995). Moreover, conflicts in
pretrial statements and trial testimony do not make a witness’s trial testimony incredibly
dubious. See Murray v. State, 761 N.E.2d 406, 409 (Ind. 2002).
9
During her testimony, Sabates provided a timeline and her observations of the day’s
events, which included waking and feeding her children, bathing them, putting K.F. down
for a nap, and taking a shower while Willis slept. Willis’s counsel cross-examined Sabates
at length about her observations regarding what occurred on the day of the incident and the
timeline of events, and called a witness who provided a different version of events from
that of Sabates. In addition, we note that Sabates’s testimony was not wholly
uncorroborated and there was not a complete lack of circumstantial evidence in this case.
As noted, the State presented the testimony of Willis’s mother and Detective Jones, and
the State also presented evidence of K.F.’s injuries and expert testimony regarding the
cause of those injuries. Moreover, to the extent the testimony of Sabates was inconsistent
or conflicted with the testimony of other witnesses, the function of weighing witness
credibility lies with the jury as trier of fact, and the jury could determine whose testimony
was believable. See Whited, 645 N.E.2d at 1141. Willis does not show how Sabates’s
testimony was incredibly dubious.
We cannot say that the testimony of Sabates regarding the timeline of events and
her observations was so inherently improbable that no reasonable person could believe it,
as Willis argues. Willis fails to point to any specific testimony of Sabates showing that her
testimony was somehow inherently inconsistent and has not shown that Sabates’s
testimony was incredibly dubious. Based upon our review of the evidence and testimony
most favorable to the conviction as set forth in the record and above, we conclude that
sufficient evidence exists from which the trier of fact could find Willis guilty beyond a
reasonable doubt of battery as a class A felony.
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II.
The next issue is whether the court erred in sentencing Willis. We observe that
Willis titles the applicable section of his brief as “Inappropriate Sentence,” and cites to Ind.
Appellate Rule 7(B), which provides that “[t]he 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.” Willis does not address either prong. Rather, the substance of his argument
concerns the court’s failure to identify his lack of criminal history as a mitigator which this
court addresses under an abuse of discretion in sentencing standard, which, as we have
repeatedly explained, is analyzed separately from the issue of whether a defendant’s
sentence is inappropriate. See, e.g., King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App.
2008) (observing that “an inappropriate sentence analysis does not involve an argument
that the trial court abused its discretion in sentencing the defendant”). Willis’s argument
that his sentence is inappropriate is waived. See Williams v. State, 891 N.E.2d 621, 633
(Ind. Ct. App. 2008); Ind. Appellate Rule 46(A)(8)(a); see also Cooper, 854 N.E.2d at 834
n.1; Shane, 716 N.E.2d at 398 n.3; Smith v. State, 822 N.E.2d 193, 202-203 (Ind. Ct. App.
2005) (“Generally, a party waives any issue raised on appeal where the party fails to
develop a cogent argument or provide adequate citation to authority and portions of the
record.”), trans. denied.
To the extent Willis argues that the court failed to find his lack of a criminal history
as a mitigator, we note that sentencing decisions rest within the sound discretion of the trial
court and are reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868
11
N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). A trial court
abuses its discretion if it: (1) fails “to enter a sentencing statement at all;” (2) enters “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;”
(3) enters a sentencing statement that “omits reasons that are clearly supported by the
record and advanced for consideration;” or (4) considers reasons that “are improper as a
matter of law.” Id. at 490-491. If the trial court has abused its discretion, we will remand
for resentencing “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.” Id.
at 491. The determination of mitigating circumstances is within the discretion of the trial
court. Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct. App. 2007), trans. denied. The trial
court is not obligated to accept the defendant’s argument as to what constitutes a mitigating
factor, and a trial court is not required to give the same weight to proffered mitigating
factors as does a defendant. Id.
To the extent that Willis suggests the trial court used his criminal history as an
aggravator, we observe that the court did not list his criminal history as an aggravator. The
court heard argument from Willis’s counsel on the issue of aggravators and mitigators and
concluded that Willis had a criminal history but no convictions. The record reveals that
Willis had pending misdemeanor charges of intimidation and harassment outstanding in
Lake County, as well as the severed counts initially charged, which the court referenced
when it declined to find his lack of criminal history as a mitigator. We cannot say that the
trial court abused its discretion when it found that Willis’s lack of criminal history was not
12
a mitigating circumstance. See Stark v. State, 489 N.E.2d 43, 48 (Ind. 1986) (noting that
“[i]t is proper for a sentencing court to consider evidence of prior criminal conduct not
reduced to convictions as part of a defendant’s criminal history”); Williams v. State, 997
N.E.2d 1154, 1163-1164 (Ind. Ct. App. 2013) (observing that a trial court does not have to
explain why it does not find that a factor is a mitigating circumstance).
Based upon the evidence presented at the sentencing hearing, we conclude that the
trial court did not abuse its discretion when it found that Willis’s lack of criminal history
was not a mitigating circumstance.
CONCLUSION
For the foregoing reasons, we affirm Willis’s conviction and sentence for battery as
a class A felony.
Affirmed.
BARNES, J., and BRADFORD, J., concur.
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