Michael C. Fouts, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] Michael Fouts was convicted of Level 6 felony domestic battery in the presence of a child less than sixteen years of age and Level 6 felony intimidation following a jury trial. Fouts appeals and presents two issues for our review:

1. Whether the State presented sufficient evidence to support his Level 6 felony domestic battery conviction.

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

[2] We affirm.

Facts and Procedural History

[3] In late June 2024, Fouts and his girlfriend, Amanda Cayton, were living in a shed located in the yard of a house Sarah Holder was renting in Williamsport. Holder is Fouts's sister. Holder lived in the house with her seven-year-old son, as well as Casey Mullins, Ethan Mullins, and the Mullinses’ two-year-old son.

[4] On June 27, Holder's landlord told Fouts and Cayton that they could no longer live in the shed and would have to move inside the main house. Cayton went inside the house to talk to Holder, and Fouts followed her. In the dining room, Fouts and Cayton argued, and Fouts shoved Cayton against a wall and grabbed her by the throat. While Fouts was clutching her throat, Cayton “couldn't hardly breathe.” Tr. p. 125. At that time, both children were inside the small house. Cayton ultimately escaped Fouts's grasp, and she went outside.

[5] Approximately ten minutes later, Fouts loudly complained to Holder about the “incompetence of women,” and Holder told him to “calm down.” Id. at 136. Fouts then said to Holder, “Shut up or I'm going to snap your neck.” Id. Fouts repeated that threat “three or four times,” and Fouts made a gesture that made it seem to Holder that he might hit her. Id.

[6] The State charged Fouts with Level 6 felony domestic battery in the presence of a child less than sixteen years of age and Level 6 felony intimidation. During the ensuing jury trial, the State presented evidence that both children were in the house at the time of the battery and could have seen or heard it. The jury found Fouts guilty as charged. The trial court entered judgment and sentenced him to an aggregate term of four years with three years executed and one year suspended to probation. This appeal ensued.

Discussion and Decision

Issue One: Sufficient Evidence

[7] Fouts argues that the State did not present sufficient evidence to support his conviction for Level 6 felony domestic battery in the presence of a child less than sixteen years of age. Our standard of review is well settled.

When an appeal raises “a sufficiency of evidence challenge, we do not reweigh the evidence or judge the credibility of the witnesses ․” We consider only the probative evidence and the reasonable inferences that support the [judgment]. “We will affirm ‘if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.’ ”

Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018) (quoting Joslyn v. State, 942 N.E.2d 809, 811 (Ind. 2011)).

[8] Indiana Code section 35-42-2-1.3 provides in relevant part that a person who knowingly or intentionally touches a household member in a rude, insolent, or angry manner in the presence of a child less than sixteen years of age knowing that the child was present and might be able to see or hear the offense commits Level 6 felony domestic battery.

[9] Fouts's sole contention on appeal is that the State did not prove that he knew that either of the two young children were present at the time he battered Cayton. But the State presented testimony that the house is small, with an “open concept” floor plan. Tr. p. 146. Holder testified that Fouts had played with her son at the house earlier that day and that he was in her bedroom at the time of the battery. In addition, Casey Mullins testified that her two-year-old son was in a room with her husband at the time of the battery. Given the small size of the house and the open concept floor plan, the evidence supports a reasonable inference that Fouts knew that both children were present at the time of the battery.

[10] Fouts does not dispute that the evidence shows that the children might have seen or heard the battery. As this Court has explained, “ ‘[p]resence’ is defined as knowingly being within either the possible sight or hearing of a child.” True v. State, 954 N.E.2d 1105, 1111 (Ind. Ct. App. 2011) (citing I.C. § 35-42-2-1.3(b)(2); emphasis original). Thus, neither child in the house “had to actually sense the battery; there only needed to be the possibility that they ‘might’ see or hear it.” Id. (citing Boyd v. State, 889 N.E.2d 321, 325 (Ind. Ct. App. 2008), trans. denied). Holder testified that her child could have seen or heard the battery from her bedroom, and Casey Mullins testified that her husband “heard stuff like faintly” when Fouts battered Cayton, which supports a reasonable inference that her child could have heard it, as well. Tr. p. 148.

[11] Fouts's argument on appeal is a request that we reweigh the evidence, which we will not do. The State presented sufficient evidence to support a reasonable inference that Fouts knew that the children were present in the home at the time of the battery. We affirm Fouts's conviction for Level 6 felony domestic battery in the presence of a child less than sixteen years of age.

Issue Two: Sentence

[12] Fouts also argues that his sentence is inappropriate in light of the nature of the offenses and his character. Under Indiana Appellate Rule 7(B), we may modify a sentence that we find is “inappropriate in light of the nature of the offense and the character of the offender.” Making this determination “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).

[13] However, sentence modification under Rule 7(B) is reserved for “a rare and exceptional case.” Livingston v. State, 113 N.E.3d 611, 612 (Ind. 2018) (per curiam). Thus, when conducting this review, we will defer to the sentence imposed by the trial court unless the defendant demonstrates compelling evidence that portrays the nature of the offenses and his character in a positive light, such as showing a lack of brutality in the offenses or showing substantial virtuous character traits. Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[14] The sentencing range for a Level 6 felony is between six months and two and one-half years, with an advisory term of one year. I.C. § 35-50-2-7. The trial court imposed a two-year executed sentence for the domestic battery conviction and a consecutive two-year sentence for the intimidation conviction with one year suspended to probation, for an aggregate term of four years with one year suspended to probation.

[15] In imposing Fouts's sentence, the trial court identified two aggravating circumstances: his criminal history, which dates back to 2014 and includes two felonies and multiple misdemeanor offenses; and the fact that Fouts “recently violated the conditions of probation, parole, pardon, Community Corrections placement or pretrial release granted to him.” Tr. p. 205. The trial court identified one mitigating circumstance, namely, that Fouts would respond affirmatively to probation.

[16] Regarding the nature of the offenses, Fouts asserts that “his particular crimes were not exactly egregious, did not leave lasting injuries to Cayton or Holder, nor the two minor children, nor was there any damage done to the real estate or personal property.” Appellant's Br. at 17. We cannot agree. Fouts clasped his hands around Cayton's throat such that she had difficulty breathing, which is egregious. And Fouts threatened the life of Holder, his own sister. We cannot say that Fouts's sentence is inappropriate in light of the nature of the offenses.

[17] Concerning his character, Fouts concedes “that he has a moderate criminal history that involved multiple juvenile adjudications and multiple misdemeanor and felony” convictions. Id. He makes no effort to argue that he possesses any virtuous traits. Given his criminal history, we cannot say that Fouts's sentence is inappropriate in light of his character.

[18] For all these reasons, we affirm Fouts's sentence.

Conclusion

[19] The State presented sufficient evidence to support Fouts's Level 6 felony domestic battery conviction, and his sentence is not inappropriate.

[20] Affirmed.

Mathias, Judge.

May, J., and Felix, J., concur.