Opinion
23A-CR-2889
06-07-2024
Tyler J. Kurre, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP ATTORNEYS FOR APPELLEE Theodore E. Rokita, Kathy J. Bradley, Thomas A. Tuck Certified Legal Intern.
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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Dearborn Superior Court The Honorable Sally A. McLaughlin, Judge Trial Court Cause No. 15D02-2303-F6-103.
ATTORNEY FOR APPELLANT R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP
ATTORNEYS FOR APPELLEE Theodore E. Rokita, Kathy J. Bradley, Thomas A. Tuck Certified Legal Intern.
MEMORANDUM DECISION
Foley, Judge.
[¶1] Tyler J. Kurre ("Kurre") was convicted after a bench trial of Level 6 felony domestic battery. Kurre appeals and raises the following restated issue for our review: whether the evidence was sufficient to support his conviction. We affirm.
Ind. Code § 35-42-2-1.3(a), (b)(2).
Facts and Procedural History
[¶2] On March 22, 2023, N.K. dropped off her and Kurre's four-year-old daughter at Kurre's residence. N.K. and Kurre were married but were going through a divorce and maintained separate residences. N.K. noticed a red wagon that she had purchased for their daughter outside by the trash at Kurre's residence, so she put the wagon in her van to take back home with her. Shortly after, Kurre dropped off their daughter at N.K.'s home. When N.K. walked outside to greet Kurre and their daughter, Kurre immediately began yelling and screaming that N.K. had stolen the wagon from him and rushed towards N.K.'s van to retrieve the wagon. N.K. attempted to run past Kurre to lock the van to prevent Kurre from taking the wagon. As N.K. approached the van, Kurre struck her with the back of his hand, knocking N.K. to the ground. Following the incident, N.K. took their daughter inside and called the police. Kurre left N.K.'s residence in his vehicle.
[¶3] Officer Bret Lusby ("Officer Lusby") arrived at N.K.'s residence, and N.K. told him that Kurre had struck her with the back of his hand, knocking her to the ground. N.K.'s mother was standing at a window in N.K.'s house and observed the incident. She told Officer Lusby that she saw Kurre strike N.K. and saw N.K. fall to the ground.
[¶4] On March 23, 2023, the State charged Kurre with Level 6 felony domestic battery and Class A misdemeanor domestic battery. During the bench trial on October 10, 2023, Officer Lusby testified that N.K. told him that Kurre "backhanded her across the chest/neck area, causing her to fall down on the concrete." Tr. Vol. II p. 8. Officer Lusby also testified that he saw "red marks of skin irritation . . . around her chest/neck area and... red scrapings on her leg where she had fallen to the concrete." Id. at 9. N.K. testified that she tried to run past Kurre so she could lock her car door but "before [she] could even get past him, he . . . backhanded [her]." Id. at 19. N.K. also testified that she fell on the concrete and then immediately got up and grabbed her daughter. N.K.'s mother testified that she was looking out the living room window when N.K. "took a step and he. . . [she] saw him backhand her," and then N.K.'s mother "saw [N.K] fall, fall down." Id. at 32.
[¶5] At the conclusion of the bench trial, the trial court found Kurre guilty as charged, emphasizing that Officer Lusby's testimony was consistent with N.K.'s testimony. On November 6, 2023, a sentencing hearing was held. The trial court entered judgment of conviction for Level 6 felony domestic battery and sentenced Kurre to two years suspended to probation. Kurre now appeals.
Discussion and Decision
[¶6] Kurre argues that insufficient evidence was presented to support his conviction. When there is a challenge to the sufficiency of the evidence, "[w]e neither reweigh evidence nor judge witness credibility." Gibson v. State, 51 N.E.3d 204, 210 (Ind. 2016), cert. denied. Instead, we consider only that evidence most favorable to the judgment together with all reasonable inferences drawn therefrom. Id. "We will affirm the judgment if it is supported by substantial evidence of probative value even if there is some conflict in that evidence." Id. Further, "[w]e will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt." Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).
[¶7] To convict Kurre of Level 6 felony domestic battery, the State was required to prove that he knowingly or intentionally touched a family or household member in a rude, insolent, or angry manner, and the touching was committed in the physical presence of a child less than sixteen years of age. Ind. Code § 35-42-2-1.3(a), (b)(2). A person acts knowingly if "he is aware of a high probability that he is doing so." I.C. § 35-41-2-2(b). A person acts intentionally if "it is his conscious objective to do so." I.C. § 35-41-2-2(a). A touching that is rude, insolent, or angry includes a touching that is discourteous or offensive in manner or action and exhibits boldness or effrontery: impudent. In re Hill, 144 N.E.3d 184, 188 (Ind. 2020).
[¶8] Kurre asserts that there was insufficient evidence to sustain a conviction for domestic battery because he did not intentionally or knowingly touch N.K., rather his only objective was to open the van door and retrieve the red wagon. Appellant's Br. p. 10. Kurre also argues that he did not act in a rude, insolent, or angry manner, instead he was only acting to retrieve his own personal property. Id.
[¶9] Here, the evidence most favorable to the judgment demonstrated that Kurre acted knowingly or intentionally when he struck N.K. N.K. testified that, immediately after arriving at her residence, Kurre began yelling and screaming that N.K. stole the red wagon from him. Kurre did this while rushing toward N.K.'s van where the red wagon was located, and as N.K. attempted to run past him to lock her van, he struck her with the back of his hand, knocking her to the ground. N.K.'s mother testified that she saw Kurre strike N.K. and saw N.K. fall to the ground. N.K also testified that she had red marks of skin irritation around her chest/neck area and red scrapings on her leg. Officer Lusby testified that he saw the red marks of skin irritation and the red scrapings on N.K.'s leg where she had fallen to the concrete. The reasonable inferences drawn from the evidence are sufficient to prove the required mens rea for the offense.
[¶10] Further, Kurre was upset and angry at N.K. when he struck her. Kurre believed that N.K. had stolen the wagon. Kurre and N.K. argued, and Kurre was yelling at N.K. as he attempted to remove the wagon from N.K.'s van. N.K. sustained red marks and skin irritation as a result of Kurre striking her.
This evidence was sufficient to demonstrate that Kurre acted in a rude, insolent, or angry manner when he struck N.K. Kurre argues that the witnesses' testimonies were "inherently incredible" and "inconsistent" with the evidence in the record. Appellant's Br. p. 14. However, Kurre's arguments are an invitation to reweigh the evidence, which we will not do. Here, the trial court heard consistent testimony from three witnesses: Officer Lusby, N.K., and N.K.'s mother, and the trial court specifically found that the testimony of the three witnesses was credible. Therefore, the evidence presented was sufficient to support Kurre's conviction.
To the extent that Kurre's assertions of the witness testimonies as "inherently incredible" and "inconsistent" with the evidence in the record are assertions that the testimony should be disregarded under the incredible dubiosity rule, we find that such argument is waived for failure to develop cogent argument or to support his assertions with citation to authority under Indiana Appellate Rule 46(A)(8)(a). See Martin v. Hunt, 130 N.E.3d 135, 137 (Ind.Ct.App. 2019) (holding that the defendant did not raise cogent arguments before the court, so they were waived on appeal).
[¶11] Affirmed.
Riley, J., and Brown, J., concur.