SMITH v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Dajon A. Smith was convicted of Level 5 felony domestic battery and sentenced to four years. He now appeals, arguing the trial court erred in identifying an aggravator. We affirm.

Facts and Procedural History

[2] In October 2023, Smith was in a relationship with A.M., and they had two children together. One day that month, Smith was driving A.M. to work when they began arguing. During the argument, Smith took A.M.’s phone and tore her jacket. After arriving at her work, he followed her inside, and they got into a physical fight. During the fight, Smith hit A.M. in the face. A coworker called 911.

[3] The State charged Smith with Level 5 felony domestic battery, which was elevated from a Class A misdemeanor due to a 2018 domestic-battery conviction against A.M. under Cause No. 49G05-1801-F5-119. See Ind. Code § 35-42-2-1.3(a)(1), (c)(4); Appellant's App. Vol. II pp. 26-29. The trial court issued a no-contact order. During the first phase of the bifurcated trial, the jury found Smith guilty of Class A misdemeanor domestic battery. In the second phase, Smith admitted to his 2018 domestic-battery conviction against A.M. in F5-119, and the court entered judgment for Level 5 felony domestic battery.

[4] At the sentencing hearing, evidence was presented about Smith's criminal history. His presentence investigation report shows that in addition to his 2018 domestic-battery conviction against A.M. in F5-119, Smith has felony convictions for Level 5 felony domestic battery in Cause No. 49D29-2102-F4-4320 (2022) and Level 5 felony battery resulting in serious bodily injury in F5-119. He also has five misdemeanor convictions: Class A misdemeanor invasion of privacy in Cause No. 49D29-2201-CM-622 (2022); Class A misdemeanor invasion of privacy in F4-4320; Class A misdemeanor unlawful possession of a firearm by a domestic batterer (2018); Class A misdemeanor domestic battery (2017); and Class A misdemeanor carrying a handgun without a license (2016).

[5] The trial court found three aggravators: (1) Smith has a criminal history; (2) he has “multiple convictions regarding the same victim”; and (3) he was on probation in CM-622 and F4-4320 at the time of this offense. Tr. Vol. II p. 221. The court found two mitigators: (1) incarceration would cause hardship to Smith's children and (2) after the first phase of trial, Smith admitted to his 2018 domestic-battery conviction against A.M. in F5-119, which elevated the offense to a Level 5 felony. The trial court sentenced Smith to four years.

[6] Smith now appeals.

Discussion and Decision

[7] Smith contends that the trial court erred in finding as an aggravator that he has multiple convictions involving A.M. because “the record shows only one other conviction involving [her], and that was the conviction used to elevate” the offense in this case from a misdemeanor to a Level 5 felony. Appellant's Br. p. 7. Our trial courts enjoy broad discretion in identifying aggravating and mitigating factors, and we will reverse only for an abuse of that discretion. Coy v. State, 999 N.E.2d 937, 946 (Ind. Ct. App. 2013).

[8] Under Indiana law, “[t]he mere fact which comprises a material element of a crime may not also constitute an aggravating circumstance to support an enhanced sentence[.]” Gomillia v. State, 13 N.E.3d 846, 849 (Ind. 2014). Smith argues that this principle was violated here because his 2018 domestic-battery conviction against A.M. in F5-119 was used both to elevate this offense from a misdemeanor to a Level 5 felony and as an aggravator at sentencing. Smith asserts that although the presentence investigation report shows that he has two other domestic-battery convictions, it “does not state who the victims in those cases were.” Appellant's Br. p. 7. He also claims that there is no other evidence in the record “to suggest the identities of the victims in those cases.” Id. But the State argued at sentencing that A.M. was the victim of Smith's Level 5 felony domestic-battery conviction in F4-4320. See Tr. p. 218. That case, like this case, was in Criminal Court 29. Thus, there is evidence in the record that A.M. was the victim in at least one other case besides F5-119. And although it doesn't appear the parties addressed it, A.M. was also the victim of Smith's Class A misdemeanor invasion-of-privacy conviction in CM-622. Again, that case was in Criminal Court 29.¹

[9] But even assuming the trial court erred, “we need not remand for resentencing if we can say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.” Vega v. State, 119 N.E.3d 193, 203 (Ind. Ct. App. 2019). Here, we can say with confidence that the court would have imposed the same sentence had it not considered as an aggravator that Smith has multiple convictions involving A.M. The court sentenced Smith to four years, which is just one year above the advisory sentence for a Level 5 felony. See I.C. § 35-50-2-6(b). Smith has a significant criminal history. In addition to his 2018 domestic-battery conviction against A.M. in F5-119, Smith has two felony and five misdemeanor convictions, which reflect a pattern of behavior of domestic battery and invasion of privacy. He was also on probation in CM-622 and F4-4320 at the time of this offense.² Accordingly, we affirm Smith's sentence.

[10] Affirmed.

FOOTNOTES

1.   In fact, at the same time that the trial court sentenced Smith in this case, the trial court revoked his probation in CM-622 and sentenced him to 60 days. See Tr. p. 220.

2.   While this case was pending, Smith repeatedly contacted A.M. in violation of the no-contact order. He was charged with Level 6 felony invasion of privacy and has since pled guilty. See Cause No. 49D29-2412-F6-35438. At sentencing in this case, the trial court said:I'm not going to consider ․ the allegation that he violated the no-contact order because it hasn't been adjudicated yet, and so I don't think it would be ․ fair for me to hold that against him ․ unless and until he's either convicted or pled guilty. So I'm not going to consider that.Tr. p. 219. If we remanded the case, the trial court would also have this additional information to consider, which makes us even more confident that the court would impose the same sentence.

Vaidik, Judge.

Tavitas, J., and Felix, J., concur.