Grundy v. State, 49A02–1409–CR–665.

38 N.E.3d 675

Scott GRUNDY, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A02–1409–CR–665.

Court of Appeals of Indiana.

June 30, 2015.

Kevin Wild, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Lyubov Gore, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

NAJAM, Judge.

Statement of the Case

[1] Scott Grundy appeals his conviction for Aggravated Battery, a Class B felony, and his habitual offender adjudication. Grundy presents three issues for our review, which we revise and restate as:

1. Whether the State presented sufficient evidence to support his conviction.

2. Whether his sentence is inappropriate in light of the nature of the offense and his character.

3. Whether the trial court erred when it enhanced his sentence under the prior version of the habitual offender statute.

[2] We affirm Grundy's conviction and his sentence, and we hold that the July 1, 2014, revisions to the habitual offender statute, Indiana Code Section 35–50–2–8, do not apply retroactively to offenses committed prior to the effective date of our new criminal code.

Facts and Procedural History

[3] In August 2012, Grundy began a romantic relationship with Jennifer Smith, which lasted for more than a year. Because of Grundy's alcoholism and substance abuse, however, the two separated and reconciled frequently, and the couple's relationship was often tumultuous. Indeed, between April and late December 2013, more than ten police reports resulted from Grundy's relationship with Smith.

[4] In December 2013, Smith was employed at Covance in Indianapolis, and, on December 28, Smith agreed to give two of her coworkers, Tonya Hardin and Fu Chia Tsai, a ride home after their shift ended at 7:00 p.m. The three's relationship was strictly professional; none associated outside of work. At approximately 7:00 p.m., Smith, Hardin, and Tsai exited the building together and walked to Smith's vehicle, and, when they approached, they noticed that someone had broken Smith's windshield wipers. Smith immediately suspected Grundy, who had sent Smith argumentative text messages earlier in the day, to which Smith did not respond.

[5] As the three observed the damage to Smith's car, Grundy drove his vehicle¹ from a nearby road, across a grassy area adjacent to the parking lot at Covance, and over some shrubbery that divided the parking lot from the grassy area. Grundy sped towards Smith, Hardin, and Tsai, and, when he got close to where the three were standing, Grundy exited the vehicle and aggressively approached Tsai. As Grundy walked towards Tsai, Grundy asked Tsai who he was and about the status of his relationship with Smith. When Tsai answered that he was Smith's coworker, Grundy responded, “Co-worker my ass.” Tr. at 13. Grundy then charged Tsai and punched him once in the face, which knocked Tsai to the ground. Once down, Grundy delivered a kick to Tsai's face. Grundy immediately returned to his vehicle and fled. Tsai remained conscious but went into shock and lost memory for ten seconds after the attack.²

[6] After the attack, Smith ran to the security desk at Covance and reported to the acting security guard, Daniel Osborne, that Grundy had attacked Tsai. Osborne called the police, and Officer Eric Walker with the Indianapolis Metropolitan Police Department responded to Osborne's call. Officer Walker actually knew Tsai personally, but, when he arrived, Officer Walker did not recognize him because of the severe injuries to Tsai's face. Smith identified Grundy to Officer Walker as Tsai's assailant.

[7] Because of his injuries, Tsai was transported to the hospital where he discovered that Grundy had broken six of the seven bones in his right eye socket, fractured his right cheek bone, and broken his nose in two places. Tsai's cheek was “significantly flattened,” and, at the hospital, he had double vision, blurred vision, and trouble breathing. State's Ex. 17. Tsai was treated and released.

[8] On January 13, 2014, the hospital referred Tsai to Dr. Hu Bai Harold Tee, an oculoplastic surgeon who specializes in reconstructive surgery, but, due to swelling in Tsai's face, Dr. Tee could not operate until January 21, 2014. In the interim, Tsai continued to have difficulty chewing and breathing,³ and he suffered headaches almost daily, which disrupted his sleep. As a result of his injuries, Tsai could not read. When Dr. Tee was able to operate on Tsai on January 21, to reconstruct Tsai's face, he placed three permanent titanium plates with metal screws into Tsai's eye socket, and he also fitted a permanent, plastic implant into Tsai's eye socket. The plates, screws, and implant restored the bones in Tsai's face to their anatomically correct positions, and they corrected his double and blurred vision, which would have persisted absent the surgery. Tsai's vision prescription, however, changed, and the surgery permanently left Tsai with scarring and a droopy eyelid. Moreover, because the attack damaged a prominent nerve in Tsai's eye socket, which provides sensation to the cheek, Tsai now has permanent numbness in the right side of his face.

[9] On January 15, 2014, the State charged Grundy by information with one count of battery, as a Class C felony, and, on February 4, the State amended its charging information to include one count of aggravated battery, a class B felony. Thereafter, Grundy moved for a speedy trial, which the trial court granted on June 9, and the State filed its habitual offender information on June 10.⁴

[10] While Grundy awaited trial in the Marion County Jail, he called his uncle, Gerald Grundy (“Uncle Gerry”), who questioned Grundy about his crime. In response, Grundy explained:

[Grundy]: ... [W]hen two people [are] in a fight[,] how hard are [they] supposed to fight[?] I hit the guy one time[,] kicked him one time[;] that was it.

* * *

[Grundy]: [H]ow bad is serious bodily injury? I mean ... they have the video and all that. And allegedly I did all this stuff. That's how we talk on the phone. But even if the video was to reflect anything[,] it would allegedly show somebody getting punched one time and getting kicked one time and that's it[.]

* * *

[Uncle Gerry]: You hit him a couple times?

* * *

[Grundy]: Yeah[,] just tunin[g] somebody up a little bit for me[dd]lin[g]. And that was it....

[Uncle Gerry]: [O]h[,] he was ... me[dd]lin[g] with you and Jenny ...?

[Grundy]: Yeah ... but I'm not gonna be rappin[g] on no phone [be] cause they record all this stuff.

* * *

[Grundy]: ... [I]t's not that bad[,] man[.] I mean[,] it's a fight [. T]here's no question it's a fight[. S]omebody got f[* * * * *] up. In fights[,] people get f[* * * * *] up.

* * *

[Grundy]: [T]hat's the bottom line[. W]hat do you do[,] rub a feather across somebody's face that you fightin[g]? Never heard of that one.

State's Ex. 19.

[11] On July 24, just before trial and again from jail, Grundy sent a letter to Smith in which he told her that she should not come to trial to testify against him. After he professed his love to Smith, Grundy wrote:

... If you show-up [sic] you will make yourself apart [sic] of an epic event [. O]ne side will try to break you down[,] and so will the other, and it will take its toll[. A]nd neither side will have compassion for your well[-]being, because both side[s] will be trying to win at your expense, [sic] (simple and plain)!

Beside[s] all that[,] what I am trying to say to you is it will not matter what you say for me or against me[. It] will not make that much difference that day, and why are you so gun hoe [sic] on [testifying] when the others have chosen not too [sic]?

Basically[,] you are the only one tripping over all this[. Y]ou know who has made it clear they are not coming, so why have you made it clear to my Uncle [sic] that you are?

Babe[,] you know what is at stake with me should you act like that[. Y]ou are not my Orangie[;] you can not [sic] help me that day[,] and I am telling you not to come period! With the only acception [sic] to this is [sic] that you are told by my folks too [sic]. You are not going to play another role in ruining my life.

If you need to do anything[,] the only right thing is to be on my side or stay away from all this. I see it has taken a serious toll on you and your thinking and judgment. So allow me to reassure you that all will be well if you listen and follow the instruction of our team, and stay out of it[. Y]ou are in way over your head!

State's Ex. 15.

[12] The trial court held Grundy's bench trial on August 13. At the trial, Tsai testified that, in addition to the permanent numbness in his face, he continued to have headaches almost daily, which affect his sleep, and issues with his neck. Further, he testified that he still has trouble with the functioning of his right eye. At the conclusion of the trial, the court convicted Grundy of aggravated battery, a Class B felony, and “merge[d]” the battery charge, as a Class C felony, into the aggravated battery conviction. Tr. at 119.

[13] Grundy's habitual offender determination and sentencing hearing were held on August 26. At the hearing, Grundy did not contest that he was a habitual offender, and he stipulated to the admission of his prior convictions. Thus, the trial court adjudicated Grundy a habitual offender and proceeded to the sentencing phase of the hearing, during which Grundy offered in mitigation: (1) his alcoholism and substance abuse; (2) his participation in Alcoholics Anonymous and Narcotics Anonymous classes while incarcerated; (3) his role as a caregiver to elderly family members who depend on him; and (4) his expression of remorse for the injuries his attack inflicted on Tsai. At the conclusion of the sentencing hearing, the court sentenced Grundy to ten years in the Indiana Department of Correction for the aggravated battery, the advisory sentence for a Class B felony, which the court enhanced by another ten years, the minimum allowed under the habitual offender statute as it existed before...