BARRUS v. STATE (2025)

MEMORANDUM DECISION

[1] Troy E. Barrus appeals his conviction and sentence for domestic battery as a level 5 felony. We affirm.

Facts and Procedural History

[2] Barrus and Amanda Barrus (“Amanda”) were married in 2018. Between January 1 and June 26, 2022, their relationship was volatile and Barrus physically attacked Amanda. Barrus punched Amanda on her chin, arms, and legs, pulled her hair, and choked her. He kicked her in the leg while he was wearing work boots. He damaged the doorframes in the house by kicking in the doors to follow Amanda when she tried to escape from him. On May 6, 2022, while Barrus was at work, Amanda left her phone at home because Barrus tracked her on her phone, and she went to a friend's house so her friend could take photographs of her bruises. The photographs show significant bruising to her arms, leg, chest, eye, and back. On June 7, 2022, Barrus lifted Amanda and “slammed [her] down on the cement slab.” Transcript Volume II at 145. The next day, she went to the emergency room “[b]ecause the pain was just unbelievable.” Id. at 147. She used a walker or cane for months. On June 26, 2022, Amanda went to a friend's house and called the police. Photographs taken that day show bruising on Amanda's forearm, shin, and leg.

[3] On July 6, 2022, the State charged Barrus with: Count I, domestic battery as a class A misdemeanor; and Count II, domestic battery as a level 5 felony.¹ In October 2024, the court held a bifurcated trial. During the first phase the State presented evidence in support of the allegations in Count I that Barrus knowingly or intentionally touched Amanda in a rude, insolent, or angry manner. After the jurors were released for deliberation, the trial court stated to defense counsel, “I don't know if you talked to your client about what happens if there's a conviction on the first,” “I just want to make sure you've had that conversation,” and “[i]f that happens, he absolutely has the right to a trial by jury on Count II as well.” Transcript Volume III at 22-23. The prosecutor stated “if there's a second phase, ․ as I understand it, Mr. Barrus is going to admit to Count II.” Id. at 23. The jury found Barrus guilty of domestic battery as a class A misdemeanor.

[4] The jurors were released from the courtroom, and the court stated “it's my understanding ․ that he's going to elect to admit to Count II and preserve his right to appeal on Count I.” Id. at 25. The court stated “your attorney's indicated you are going to admit to Count II, still preserves your right to appeal Count I, so that's still valid,” and Barrus replied “[y]es.” Id. The court stated “[o]kay. I have some questions for you. I'm going to treat it like a guilty plea at this point. Again, only as to Count II, without prejudice to your right to appeal Count I.” Id. The court asked “[i]s it your intention to withdraw the former plea of not guilty as to Count II only and enter a plea of guilty,” Barrus answered “[y]es.” Id. at 26. The court read Count II and asked “[d]o you understand that by pleading guilty to that charge, you're admitting to everything I just read to you is true and correct,” Barrus said “[y]es,” defense counsel stated, “[a]nd it's based on the conviction ․ [a]nd that if that is overturned on appeal, that this goes away as well,” and the court stated, “[y]eah ․ it does not prejudice you in any way (inaudible) appeal (inaudible).” Id. at 27. The court asked, “[i]f you told me right now you want to go through with it, we've got the jury waiting, we'd go ahead and resume our phase two of the jury trial. Do you understand that,” and Barrus answered, “[y]es.” Id. at 28-29.

[5] The prosecutor asked “you understand that the jury is obviously now convicted you of Count I ․ You may not agree with that verdict, but do you understand that's what the jury found,” and Barrus replied affirmatively. Id. at 29. The prosecutor asked “would you further admit that you have a prior conviction under ․ cause number 85C01-1810-F5-1175 for a Domestic Battery conviction; and again, it's the same family or household member, specifically Amanda Barrus,” and Barrus answered “[y]es.” Id. at 29-30. The court admitted certified records from cause number 85C01-1810-F5-1175 (“Cause No. 1175”) and found there was “a factual basis for this plea.” Id. at 31. The court stated, “I will be entering a judgment of conviction on Count II. He can't be convicted of Count II and Count I.” Id.

[6] At sentencing, Barrus testified that he helped his mother and stepfather with yardwork, housework, and maintenance due to their health issues and also did lawn work for his sister who was a single mother. The court found the aggravating circumstances included Barrus's multiple convictions for similar charges and that he showed no remorse, and the court did not find any mitigating circumstances. It sentenced Barrus to six years with six months suspended to probation. The court stated that the reason it was suspending six months was for Barrus to obtain domestic battery intervention and ordered him to pay a domestic violence prevention fee. It also ordered that, “[u]pon the offender's successful completion of the clinically appropriate substance abuse treatment program as determined by IDOC, the Court will consider a motion for modification of the offender's sentence if appropriate and if agreed upon by the State of Indiana.” Appellant's Appendix Volume II at 21.

Discussion

I.

[7] Barrus asserts that the trial court committed fundamental error when, after the jury found him guilty on Count I, the court “did not enter judgment of conviction for this matter, but instead, with agreement of the State and [his] trial counsel, proceeded with accepting a guilty plea from [him] for Count II.” Appellant's Brief at 15. He argues the court “accepted a guilty plea from [him], which involved [him] admitting to the exact factual basis found in Count I, i.e. battering Amanda, plus the prior Domestic Battery conviction involving Amanda as the victim” and, “[b]ecause of these actions by the trial court, the State and [his] trial counsel, the parties, albeit inadvertently, foreclosed [his] ability to challenge his conviction for the same with this Court.” Id. at 16.

[8] The State maintains that Barrus fails to make a cogent argument or cite authority, waiving his claim. It argues that Barrus admitted or stipulated to the prior conviction, not to all of the elements of the charge, and that he was not foreclosed from challenging on appeal the evidence supporting the jury's finding. It argues that trial court's nomenclature was not dispositive as to the nature of the proceeding.

[9] Fundamental error is an extremely narrow exception that allows a defendant to avoid waiver of an issue. Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). It is error that makes a fair trial impossible or constitutes clearly blatant violations of basic and elementary principles of due process presenting an undeniable and substantial potential for harm. Id. “Fundamental error is meant to permit appellate courts a means to correct the most egregious and blatant trial errors that otherwise would have been procedurally barred, not to provide a second bite at the apple for defense counsel who ignorantly, carelessly, or strategically fail to preserve an error.” Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014), reh'g denied.

[10] Barrus essentially takes issue with the procedure chosen and the terminology used by the trial court with respect to the second phase of his bifurcated trial. A conviction based upon a guilty plea may not be challenged by direct appeal. Tumulty v. State, 666 N.E.2d 394, 395 (Ind. 1996). In Garrett v. State, the Indiana Supreme Court rejected Garrett's assertion that his stipulation to the existence of prior offenses during the habitual offender phase of his trial was tantamount to a guilty plea. 737 N.E. 2d 388, 392 (Ind. 2000). “A stipulation that seeks to establish certain facts does not constitute a guilty plea.” Id. (citing Whatley v. State, 685 N.E.2d 48, 49 (Ind. 1997) (finding that a stipulation as to the existence of a defendant's prior conviction used to enhance a handgun offense did not amount to a guilty plea)). The Court held “[t]he stipulation at issue only acknowledged that Garrett had been convicted of the prior offenses and sentenced on certain dates” and “it established only the fact that the prior offenses existed and did not amount to a guilty plea.” Id.

[11] Here, the jury found Barrus guilty of domestic battery as a class A misdemeanor as alleged in Count I during the first phase of the bifurcated trial. The second phase of the bifurcated trial related to the allegation under Count II that Barrus had a previous conviction in Cause No. 1175 for a battery offense against Amanda. While the trial court referred to Barrus's admission that he had a previous conviction in Cause No. 1175 as a “guilty plea,” Transcript Volume III at 25, it is clear from the record that the second phase of the bifurcated trial consisted of Barrus admitting or stipulating to the existence of his previous conviction and that the second phase was not intended to include a guilty plea with respect to the charge in Count I already determined by the jury. Indeed, the court acknowledged the jury's verdict on Count I, questioned Barrus about his conviction in Cause No. 1175, and reiterated several times that, even if Barrus admitted to the previous conviction in Cause No. 1175, he still had the “right to appeal Count I.” Id. We conclude that the procedure and terminology used by the trial court did not result in an unfair proceeding or a blatant violation of due process. Barrus has not established fundamental error.

II.

[12] Barrus states “he must concede that ․ the severity of the alleged touches involved numerous acts of physical assault that left bruises, injuries and pain to Amanda,” that Amanda was his spouse, and that “he had a prior conviction for the same involving her.” Appellant's Brief at 19-20. He argues, “[d]espite all this, which [he] would concede would support an enhanced sentence above the advisory of three (3) years, does not support the nearly maximum sentence that he actually received in this matter as his offenses are not the ‘worst of the worst.’ ” Id. at 20. He argues his sentence “was almost the maximum for a Level 5 Felony and was not appropriate considering [he] had a minimal criminal history; elderly parents with significant health issues that he helped take care of; a sister that is a single mom that he helped; [and] previously obtained his high school diploma and some college classes.” Id. at 20-21. The State maintains that Barrus's sentence is not inappropriate given the violent nature of his offense and his criminal history.

[13] Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by statute if, after due consideration of the trial court's decision, [we find] that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Under this rule, the burden is on the defendant to persuade the appellate court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether a sentence is inappropriate “turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

[14] Ind. Code § 35-50-2-6 provides that a person who commits a level 5 felony shall be imprisoned for a fixed term of between one and six years with the advisory sentence being three years. The Indiana Supreme Court has noted that “the maximum possible sentences are generally most appropriate for the worst offenders.” Buchanan v. State, 767 N.E.2d 967, 973 (Ind. 2002). The Court further stated, “[t]his is not, however, a guideline to determine whether a worse offender could be imagined,” “[d]espite the nature of any particular offense and offender, it will always be possible to identify or hypothesize a significantly more despicable scenario,” and “[a]lthough maximum sentences are ordinarily appropriate for the worst offenders, we refer generally to the class of offenses and offenders that warrant the maximum punishment. But such class encompasses a considerable variety of offenses and offenders.” Id. We note that the court suspended six months of Barrus's sentence to probation and thus cannot say that he received the maximum executed sentence.

[15] Our review of the nature of the offense reveals that Barrus punched Amanda, kicked her, pulled her hair, choked her, and “slammed [her] down on the cement slab.” Transcript Volume II at 145. Amanda went to the hospital due to “unbelievable” pain and used a walker or cane for months. Id. at 147. Numerous photographs depict the number and severity of Amanda's injuries. Amanda testified at length regarding Barrus's temper, his mood swings, and that she “never knew what was going to set him off.” Id. at 134. The trial court noted, “I've not seen any remorse.” Transcript Volume III at 42.

[16] Our review of the character of the offender reveals that Barrus, who was born on January 15, 1969, was charged in July 1989 with domestic battery as a class A misdemeanor, that he entered into a diversion agreement, and that the State moved to dismiss the case in February 1992. The presentence investigation report (“PSI”) indicates that a jury found Barrus guilty of battery resulting in bodily injury as a class A misdemeanor in 2001 for which he was sentenced to one year. In August 2018, Barrus pled guilty to domestic battery as a class A misdemeanor for which he was sentenced to fifty-eight days in jail. In March 2019, Barrus pled guilty to domestic battery of Amanda as a level 6 felony under Cause No. 1175 for which he was sentenced to two and one-half years. The PSI indicates that Barrus graduated from high school in 1987 and completed a millwright program sponsored by his employer in 2004. Barrus reported that he lived with his parents and helped them and his sister with yard, house, and car maintenance work, and in turn they paid his bills. The trial court suspended six months of Barrus's sentence so that he would obtain domestic battery intervention. After due consideration, and in light of the number and severity of his assaults on Amanda and his criminal history, we conclude that Barrus has not met his burden of establishing that his sentence is inappropriate in light of the nature of the offense and his character.

[17] For the foregoing reasons, we affirm Barrus's conviction and sentence.

[18] Affirmed.

FOOTNOTES

1.   Count I alleged: “On or between January 1, 2022 and June 26, 2022, ․ one TROY E. BARRUS did knowingly or intentionally touch Amanda Barrus, a family or household member, in a rude, insolent, or angry manner[.]” Appellant's Appendix Volume II at 42. Count II alleged:On or between January 1, 2022 and June 26, 2022, ․ one TROY E. BARRUS did knowingly or intentionally touch Amanda Barrus, family or household member, in a rude, insolent, or angry manner and Troy E. Barrus has a previous conviction under Cause No. 85C01-1810-F5-1175 for a battery offense included under I.C. 35-42-2 against the same family or household member (to-wit: Amanda Barrus)[.]”Id. at 43.

Brown, Judge.

Altice, C.J., and Tavitas, J., concur.