MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Apr 07 2020, 9:23 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana
Robert L. Yates
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cody Lee Bellamy, April 7, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2654
v. Appeal from the Ripley Superior
Court
State of Indiana, The Honorable Jeffrey Sharp,
Appellee-Plaintiff Judge
Trial Court Cause No.
69D01-1809-F6-215
Crone, Judge.
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Case Summary
[1] A trial court convicted Cody Lee Bellamy of level 6 felony strangulation and
class B misdemeanor battery. He now appeals his strangulation conviction,
claiming that the victim’s testimony was incredibly dubious. He also challenges
his two-year executed sentence, claiming that it is inappropriate in light of the
nature of his offenses and his character. We affirm.
Facts and Procedural History
[2] In May 2018, Bellamy began a romantic relationship with J.M., whom he had
met at work. At that time, Bellamy was on probation for a 2016 burglary
conviction. By mid-summer, he had moved into J.M.’s efficiency apartment.
He lost his job when he was pulled over and arrested for driving on a suspended
license, and J.M. resigned her position shortly thereafter. J.M.’s mother lived
nearby, paid J.M.’s rent and utilities, and visited often.
[3] On September 8, 2018, J.M. told Bellamy that their relationship was over. At
his urging, she allowed him to stay at the apartment for another week while he
searched for new accommodations. That evening, the two twenty-year-olds
drank alcoholic beverages that Bellamy had purchased. Bellamy became very
angry over text messages and a phone call that J.M. received from another man
and called her a “stupid b*tch” and a liar. Tr. Vol. 2 at 22. He grabbed her dog
by the scruff of its neck and threw it across the room. J.M. picked up her dog
and attempted to leave the apartment, but Bellamy slammed the door on J.M.’s
hand, injuring it and cracking her phone screen. J.M. slapped Bellamy’s face
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three times, and he punched her once in the face and twice in her abdomen. At
one point, he put her in a chokehold between his bicep and forearm, and she
could not breathe. When she screamed for help, he momentarily grabbed a
butter knife and threatened to kill her. He took her phone outside and told her
that he had discarded it so that she would have no way of contacting anyone.
[4] Shortly thereafter, J.M. again attempted to make a “run for it,” and exited the
apartment. Id. at 29. By this time, it was dark and rainy outside. As J.M. ran,
Bellamy chased her down and tackled her to the ground. In the ensuing
struggle, her fingernail was torn off. While she was still on the ground, Bellamy
held her in a chokehold between his bicep and forearm until she briefly lost
consciousness. When she regained consciousness, Bellamy forced her back
inside the apartment and made her change his wet clothes for him and change
her own clothes in front of him. She described his demeanor as going back and
forth from extremely angry to apologetic to weepy. He forced her to hold him
in her lap on the couch for what seemed like a long while; then, without
explanation or comment, he got up and walked out of the apartment. Shortly
thereafter, J.M. found her phone (which Bellamy had actually hidden inside the
apartment) and exited the apartment through a previously barricaded back
door.
[5] Once outside, J.M. phoned her mother, Daisy, who hurried over to J.M.’s
apartment. The two then drove to Daisy’s home. As they pulled in the
driveway, they saw Bellamy approaching, riding very fast on a bicycle. The
two women rushed in through the back door, locked it, and made 911 calls.
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Meanwhile, Bellamy stood outside the back door, yelling and banging his head
repeatedly against the double-paned glass portion of the door. The outer pane
broke, and Bellamy’s forehead bled on the glass and the porch. When Bellamy
saw police lights approaching, he fled on foot. Town Marshal Ron Buchanan
tended to the distraught women as they briefly recounted what had occurred.
Marshal Buchanan observed J.M.’s injuries to her face, legs, arms, and neck,
and officers took photographs of these injuries. Marshal Buchanan, who had
previously worked thirty-six years as a paramedic, noted that the redness on
J.M.’s neck was consistent with a person who had been choked between a bicep
and a forearm.
[6] Marshal Buchanan accompanied J.M. and Daisy back to J.M.’s apartment. He
searched the apartment and instructed them to lock the door when he left.
Minutes later, Bellamy banged on the door, identified himself as an officer, and
instructed the women to open the door. Daisy approached the door, but J.M.
recognized the voice as Bellamy’s and told her not to open it. They called 911,
and Marshal Buchanan returned. By that time, Bellamy had fled, and his
whereabouts were unknown, so the marshal advised the women to leave town.
They stayed three nights in a nearby town with Daisy’s boyfriend and returned
once Bellamy had been apprehended.
[7] The State charged Bellamy with level 6 felony strangulation and class A
misdemeanor domestic battery. Bellamy waived his right to a jury trial, and a
bench trial ensued. The trial court convicted Bellamy of level 6 felony
strangulation, and although the court specifically found that the evidence
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supported a conviction for class A misdemeanor domestic battery, the substance
of the charging information was insufficient to support the charge. As a result,
the court convicted Bellamy of battery as a class B misdemeanor.
[8] At sentencing, the trial court identified as aggravators Bellamy’s juvenile and
adult criminal history and his repeated violations of his placements. The court
also considered the fact that Bellamy was on probation for a burglary
conviction and was out on bond for unrelated charges when he committed the
current offenses. The court characterized the protracted nature of the current
offenses as a “night of terror.” Id. at 195. As mitigators, the court noted
Bellamy’s family support and desire to provide for his current girlfriend and her
child. The court sentenced Bellamy to a two-year executed term for
strangulation and a concurrent 180-day term for battery, plus a civil restitution
order for $600. Bellamy now appeals. Additional facts will be provided as
necessary.
Discussion and Decision
Section 1 – The evidence is sufficient to support Bellamy’s
conviction for level 6 felony strangulation.
[9] Bellamy challenges the sufficiency of the evidence to support his strangulation
conviction. When reviewing a challenge to the sufficiency of evidence, we
neither reweigh evidence nor judge witness credibility. Moore v. State, 27
N.E.3d 749, 754 (Ind. 2015). Rather, we consider only the evidence and
reasonable inferences most favorable to the verdict and will affirm the
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conviction unless no reasonable factfinder could find the elements of the crime
proven beyond a reasonable doubt. Id. Reversal is appropriate only when
reasonable persons would be unable to form inferences as to each material
element of the offense. McCray v. State, 850 N.E.2d 998, 1000 (Ind. Ct. App.
2006), trans. denied. The evidence need not “overcome every reasonable
hypothesis of innocence.” Dalton v. State, 56 N.E.3d 644, 647 (Ind. Ct. App.
2016) (citation omitted), trans. denied.
[10] To convict Bellamy of level 6 felony strangulation, the State was required to
demonstrate beyond a reasonable doubt that he (1) knowingly or intentionally,
and (2) in a rude, angry, or insolent manner, (3) applied pressure to J.M.’s
throat or neck in a manner that impeded J.M.’s normal breathing or blood
circulation. Ind. Code § 35-42-2-9(c). Bellamy asks that we impinge on the
province of the trial court as factfinder and reassess J.M.’s credibility pursuant
to the “incredible dubiosity” rule. According to this rule,
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.
Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007) (citations omitted). For this
rule to apply, there must be a sole testifying witness, testimony that is inherently
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contradictory, equivocal, or coerced, and a complete absence of circumstantial
evidence. Moore, 27 N.E.3d at 756.
[11] J.M. was not the sole testifying witness, and her testimony was neither
contradictory nor equivocal. She unwaveringly recounted the events at the
apartment, which included Bellamy’s headlock hold around her neck both
inside the apartment and later outside after he tackled her to the ground from
behind. Tr. Vol. 2 at 69. This latter incident involved a stranglehold so tight
that J.M. temporarily lost consciousness. Marshal Buchanan, who had thirty-
six years’ experience as a paramedic, testified that he observed redness on
J.M.’s neck consistent with having been placed in a stranglehold between a
person’s bicep and forearm. He explained J.M.’s development of petechiae,
which is redness caused when the small blood vessels in the eyes burst due to
the compression of large blood vessels such as those in the neck. J.M.’s
testimony that her eyes became more bloodshot in the days following the attack
was supported by Marshal Buchanan, who explained that this type of injury
becomes more noticeable in the days after a strangulation. The only
contradiction was Bellamy’s denial that he strangled her. Simply put, the
nature and corroboration of J.M.’s testimony do not support the application of
the incredible dubiosity rule to this appeal. The trial court, as trier of fact,
found J.M. to be credible and Bellamy to lack credibility. We decline Bellamy’s
invitation to reassess credibility, and find the evidence sufficient to support
Bellamy’s strangulation conviction.
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Section 2 – Bellamy has failed to demonstrate that his sentence
is inappropriate in light of the nature of the offense and his
character.
[12] Bellamy asks that we reduce his sentence pursuant to Indiana Appellate Rule
7(B), which states that we “may revise a sentence authorized by statute if, after
due consideration of the trial court’s decision, [this] Court finds that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender.” “Sentencing is principally a discretionary function in which
the trial court’s judgment should receive considerable deference.” Cardwell v.
State, 895 N.E.2d 1219, 1222 (Ind. 2008). When a defendant requests appellate
review and revision of his sentence, we have the power to affirm or reduce the
sentence. Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010).
[13] In conducting our review, our principal role is to leaven the outliers, focusing
on the length of the sentence and how it is to be served. Bess v. State, 58 N.E.3d
174, 175 (Ind. 2016); Foutch v. State, 53 N.E.3d 577, 580 (Ind. Ct. App. 2016).
This allows for consideration of all aspects of the penal consequences imposed
by the trial court in sentencing, i.e., whether it consists of executed time,
probation, suspension, home detention, or placement in community
corrections. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). We do “not
look to see whether the defendant’s sentence is appropriate or if another
sentence might be more appropriate; rather, the test is whether the sentence is
‘inappropriate.’” Foutch, 53 N.E.3d at 581 (quoting Barker v. State, 994 N.E.2d
306, 315 (Ind. Ct. App. 2013), trans. denied (2014)). The defendant bears the
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burden of persuading this Court that his sentence meets the inappropriateness
standard. Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016).
[14] In considering the nature of Bellamy’s offenses, “the advisory sentence is the
starting point the Legislature has selected as an appropriate sentence.” Green v.
State, 65 N.E.3d 620, 637-38 (Ind. Ct. App. 2016), trans. denied (2017). When
determining the appropriateness of a sentence that deviates from an advisory
sentence, we consider whether there is anything more or less egregious about
the offense as committed by the defendant that “makes it different from the
typical offense accounted for by the legislature when it set the advisory
sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011).
[15] The trial court sentenced Bellamy to an aggregate two-year executed sentence,
comprising a two-year executed term for his level 6 felony conviction and
concurrent 180-day term for his class B misdemeanor conviction. A level 6
felony carries a sentencing range of six months to two and one-half years with a
one-year advisory term. Ind. Code § 35-50-2-7. A class B misdemeanor carries
a sentence of not more than 180 days and a fine of not more than $1000. Ind.
Code § 35-50-3-3.
[16] In examining the nature of Bellamy’s offenses, we cannot ignore the trial court’s
characterization of the events as a “night of terror,” with three separate
backdrops and multiple violent outbursts. Tr. Vol. 2 at 195. In the throes of his
anger and jealousy, Bellamy first went after J.M.’s dog, throwing it across the
room. When J.M. sought to leave, Bellamy refused to allow it and slammed
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the door on her hand, injuring her and damaging her phone. When she slapped
his face, he upped the ante, punching her with his fist, first in the face and then
twice in the abdomen. He placed her in a chokehold, and she could not
breathe. He threatened her with a butter knife, and when she again tried to
leave the apartment, he followed her out into the rain and tackled her from
behind. In her beleaguered yet desperate struggle, her fingernail tore
completely off. She testified that she thought Bellamy was going to kill her. Id.
at 32. Bellamy placed her in a prolonged stranglehold between his bicep and
forearm, “squeezing tighter and tighter” until she passed out. Id. at 69. After
she revived, he humiliated her by forcing her inside the apartment to undress
and dress in front of him and to do the same for/to him. He then forced her to
hold him in her lap for what seemed like a long time. Then, without a word, he
simply got up and left. This precipitated J.M.’s exit and call to Daisy, who
drove her to her house.
[17] But the night was not over. Bellamy followed the women to Daisy’s house and
banged his head on the glass door until the outer pane broke, with shards of
glass causing blood to drip onto the door and porch. Daisy recounted that
every time Bellamy banged his head, she could see the inside doorframe
separating from the wall. Id. at 80. She described J.M. as traumatized and
herself as “scared to death.” Id. at 81. It was the approaching police lights that
caused Bellamy to stop and flee the scene. But again the night was not over.
Bellamy waited until the women returned to J.M.’s apartment and the marshal
left; then, pretending to be a police officer, he ordered them to open the door.
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The 911 calls underscore the terror of the night, as Bellamy followed the
frightened women from place to place. In short, the “whole” of the night was
greater than the sum of its parts. The night was rife with other uncharged
conduct by Bellamy, and it was the deficient charging information, not the
strength of the evidence, that limited Bellamy’s battery conviction to a class B
misdemeanor instead of the more serious original charge of domestic battery.
The nature of Bellamy’s offenses simply does not militate toward a shorter
sentence, nor does Bellamy’s character.
[18] We conduct our review of his character by engaging in a broad consideration of
his qualities. Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on
other grounds on reh’g, 11 N.E.3d 571. “When considering the character of the
offender, one relevant fact is the defendant’s criminal history.” Garcia v. State,
47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied (2016). Bellamy is
relatively young, just twenty-one years old at the time of sentencing, yet his
criminal history is already lengthy. His entanglements with the juvenile system
began during his early teens and include adjudications for conduct amounting
to auto theft and criminal mischief if committed by an adult. He ran away from
a juvenile detention facility during one of his commitments. His adult history
includes a conviction for level 5 felony burglary and a conviction for driving
while suspended. After having served a portion of his burglary conviction in
the DOC, he was released to home detention but was remanded to the DOC for
multiple violations, including failure to report for drug screens and community
service, having alcohol in his residence, and leaving the residence without
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permission. He later was placed on probation, only to have it revoked when he
committed new criminal offenses. Shortly before he committed the current
offenses, he was charged with domestic battery of a different girlfriend (later
dismissed) and driving while suspended. When he committed the current
offenses, he was serving probation in one cause and was released on bond in
another cause. Bellamy now claims that he is a changed person and asks for
probation so that he can work to provide financial support for his current
girlfriend and her child. However, his failure to abide by the law and by the
rules of his placements does not bode well for future placement in sentencing
programs outside the DOC.
[19] Bellamy also has a history of drug use. He admitted that he used marijuana
from ages fourteen to eighteen and methamphetamine from ages sixteen to
seventeen. Although he was only twenty years old, he purchased and
consumed alcoholic beverages immediately before he committed the current
offenses. His character simply does not merit a reduced sentence. Based on the
foregoing, we conclude that Bellamy has failed to meet his burden of
demonstrating that his sentence is inappropriate. Consequently, we affirm it.
[20] Affirmed.
Bailey, J., and Altice, J., concur.
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