Opinion
23A-CR-2333
06-14-2024
Dennis Matthew Howard, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Lisa Johnson Brownsburg, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Robert M. Yoke Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Pulaski Superior Court Trial Court Cause No. 66D01-2304-F6-43 The Honorable Crystal A. Kocher, Judge
ATTORNEY FOR APPELLANT Lisa Johnson Brownsburg, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Robert M. Yoke Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Tavitas, Judge
Case Summary
[¶1] Following a jury trial, Dennis Howard was convicted of domestic battery in the presence of a child and criminal confinement, Level 6 felonies. On appeal, Howard claims that the State failed to present sufficient evidence to prove that the domestic battery offense was committed in the presence of a child. We disagree and, accordingly, affirm.
Issue
[¶2] Howard raises one issue, which we restate as: whether the State presented sufficient evidence to prove that the domestic battery offense was committed in the presence of a child.
Facts
[¶3] Howard was in a relationship with J.C., but their relationship was not stable. On April 1, 2023, Howard sent J.C. a text message, but J.C. did not respond. Howard became upset and threatened that he would "burn [J.C.'s] f**king house down with [her] and [her] children in it." Tr. Vol. II p. 104. Howard also asked J.C. to come to his grandmother's trailer in Pulaski County where he lived. J.C. drove to Howard's residence with her seven-year-old daughter A.T.
[¶4] J.C. and A.T. entered the trailer and sat in the living room with Howard's grandmother, who was watching television. Howard was in the bedroom, which shared a wall with the living room. Howard became angry because J.C. ignored him and sat with Howard's grandmother, so Howard went to the living room and started yelling at J.C. A.T. got scared and sat in J.C.'s lap, so Howard yelled and cursed at A.T. too, accusing the child of being the reason for the problems between Howard and J.C. J.C. asked Howard not to talk to A.T. like that. Howard then asked J.C. to come to his bedroom.
[¶5] J.C. went to the bedroom with Howard, who locked the door. Howard started searching J.C's phone to search for evidence of her cheating on him. J.C. told Howard, "If that's all you want to do tonight is just argue, I'm just going to leave." Tr. Vol. II p. 108. J.C. stood up and walked toward the door to take her purse and phone back. Howard pushed J.C., told her to "sit the f**k down," and told her that she was "not f**cking going anywhere." Id. J.C. took her phone from Howard's hands. Howard then punched J.C.'s left ear. Howard pushed J.C., and she fell backward and slammed into the wall. When J.C. hit the wall, it made a sound that A.T. heard from the living room.
[¶6] J.C. sent a text to A.T. that said "911." Id. at 112. Realizing that this was a request that she call for help, A.T. called 911. Shortly thereafter, Howard's grandmother knocked on the bedroom door, and Howard opened it. Howard's grandmother told him, "There's a man or someone on the phone with [A.T.] that needs to talk to an adult." Id. at 113. J.C. realized that A.T. called 911, so she pushed Howard and ran to the living room, took A.T., and left the trailer. J.C. talked to the 911 operator and drove to a nearby church parking lot, where she met the police.
[¶7] Deputy Aaron Zimmerman of the Pulaski County Sheriff's Department observed J.C.'s injuries and photographed them. J.C.'s ear was red, and her finger was bleeding and swollen as a result of her trying to defend herself from Howard's blows.
[¶8] On April 4, 2023, the State charged Howard with: (1) domestic battery in the presence of a child, a Level 6 felony; and (2) criminal confinement, a Level 6 felony. While Howard was in jail awaiting trial, he called J.C. and asked her to say that she had been drunk on the night of the battery. Howard told J.C. that one of his friends had been charged with domestic battery but that the charges had been dropped when the victim stated that she was drunk on the night of the battery and was, therefore, not a credible witness. J.C. refused to lie for Howard. During this call, Howard acknowledged that J.C. and A.T. were at his grandmother's house on the night of the battery.
[¶9] The trial court held a jury trial on August 24, 2023, and the jury found Howard guilty as charged. On September 21, 2023, the trial court sentenced Howard to 912 days for each offense and ordered the two sentences to be served concurrently. The trial court ordered 540 days of both sentences to be served in the Department of Correction, with credit for time served, and with the remainder suspended to probation. Howard now appeals.
Discussion and Decision
[¶10] Howard challenges the sufficiency of the evidence to support his conviction for domestic battery in the presence of a child. Sufficiency of evidence claims, "warrant a deferential standard, in which we neither reweigh the evidence nor judge witness credibility." Powell v. State, 151 N.E.3d 256, 262 (Ind. 2020) (citing Perry v. State, 638 N.E.2d 1236, 1242 (Ind. 1994)). "When there are conflicts in the evidence, the jury must resolve them." Young v. State, 198 N.E.3d 1172, 1176 (Ind. 2022). We consider only the evidence supporting the judgment and any reasonable inferences drawn from that evidence. Powell, 151 N.E.3d at 262 (citing Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018), cert. denied). "We will affirm a conviction if there is substantial evidence of probative value that would lead a reasonable trier of fact to conclude that the defendant was guilty beyond a reasonable doubt." Id. at 263. We affirm the conviction "unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.'" Sutton v. State, 167 N.E.3d 800, 801 (Ind.Ct.App. 2021) (quoting Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007)).
[¶11] The crime of domestic battery is defined by statute as follows:
(a) Except as provided in subsections (b) through (f), a person who knowingly or intentionally:
(1) touches a family or household member in a rude, insolent, or angry manner ....
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commits domestic battery, a Class A misdemeanor.
(b) The offense under subsection (a)(1) . . . is a Level 6 felony if one (1) or more of the following apply:
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(2) The person who committed the offense is at least eighteen (18) years of age and committed the offense against a family or household member in the physical presence of a child less than sixteen (16) years of age, knowing that the child was present and might be able to see or hear the offense.. . .Ind. Code § 35-42-2-1.3.
[¶12] Accordingly, to convict Howard of domestic battery in the presence of a child, the State was required to prove that he: (1) knowingly or intentionally; (2) touched J.C.; (3) in a rude, insolent, or angry manner; (4) Howard was at least eighteen years old when he committed the offense; (5) Howard committed the offense in the presence of A.T., who was under the age of sixteen years old; and (6) Howard knew that A.T. was present and might be able to see or hear the offense.
[¶13] Howard claims that the evidence presented by the State was insufficient to prove that the offense was committed "in the presence" of A.T. Howard argues that the offense happened in the bedroom, and the door to the room was locked, whereas A.T. was in the living room where the television was on. Howard, therefore, argues that there was no possibility that A.T. could have heard or seen the offense.
Howard does not dispute that there was evidence that A.T. was under the age of sixteen.
[¶14] We addressed a similar argument in Manuel v. State, 971 N.E.2d 1262 (Ind.Ct.App. 2012). In that case, Manuel battered his girlfriend, D.S., while their children were in a different room, and he was convicted of battery in the presence of a child. Manuel argued on appeal that the State failed to present sufficient evidence that the battery was committed in the presence of a child. Specifically, Manuel claimed that he committed the battery within the "proximity" of the children rather than in their "presence" because the children were in their bedroom, not in the hallway where the battery took place. Id. at 1269.
[¶15] We disagreed and, relying upon Boyd v. State, 889 N.E.2d 321 (Ind.Ct.App. 2008), trans. denied, and True v. State, 954 N.E.2d 1105 (Ind.Ct.App. 2011), held:
[I]n Boyd we held that "presence" under I.C. § 35-42-2-1.3(b)(2) does not require that a child actually sense the battery; it is sufficient that the child might see or hear the battery. Boyd, 889 N.E.2d at 325. In True we further clarified that "presence" for purposes of I.C. § 35-42-2-1.3(b)(2) is "defined as knowingly being within either the possible sight or hearing of a child." True, 954 N.E.2d at 1111. From this precedent, we conclude that the critical question in determining whether a child is "present" for purposes of the statute is whether a reasonable person would conclude that the child might see or hear the offense; not whether the child is in the same room as where the offense is taking place.Manuel, 971 N.E.2d at 1270. We, therefore, held that even though the children were not in the same room when the offense was committed, there was sufficient evidence that the battery was committed in the presence of a child. The critical issue was whether the child might see or hear the offense.
[¶16] Here, A.T. was in the living room, which shares a wall with the bedroom where the battery occurred, and A.T., in fact, heard J.C. hit the wall after Howard pushed J.C. Howard was well aware of A.T.'s presence in the next room.
Howard does not dispute that there was evidence that he knowingly or intentionally hit J.C. in a rude, insolent, or angry manner. As in Manuel, we conclude that the State presented evidence that would permit a reasonable trier of fact to conclude that A.T. might have seen or heard battery. Thus, the State presented evidence sufficient to support Howard's conviction for domestic battery in the presence of a child.
Conclusion
[¶17] The State presented sufficient evidence to prove that Howard committed domestic battery in the presence of a child. Accordingly, we affirm.
[¶18] Affirmed.
Mathias, J, and Weissmann, J., concur.