Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Dec 19 2013, 6:53 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL D. GROSS GREGORY F. ZOELLER
Lebanon, Indiana Attorney General of Indiana
ANGELA N. SANCHEZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MAXWELL SWISHER, )
)
Appellant-Defendant, )
)
vs. ) No. 06A04-1304-CR-173
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE BOONE SUPERIOR COURT
The Honorable Matthew C. Kincaid, Judge
Cause No. 06D01-1112-FD-474
December 19, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
Maxwell Swisher (“Swisher”) appeals his conviction, following a bench trial, for
Class A misdemeanor domestic battery.1
We affirm.
ISSUE
Whether sufficient evidence supports Swisher’s conviction.
FACTS
The facts most favorable to the verdict reveal that in December 2011, Swisher, his
girlfriend, Debra Thobhani (“Thobhani”), and their two-year-old son, T.S., were living
with Swisher’s mother, Tammy Garding (“Garding”) and her husband in Boone County.
Swisher’s other son and younger sisters also lived at Garding’s house. During the
evening hours of December 16, 2011, Jamestown Police Officer Larry Bewley (“Officer
Bewley”) was dispatched to Garding’s house on a domestic disturbance call after Garding
called 911 to request that a police officer be sent to her house. Garding told the
dispatcher that “her son” was “hitting on his girlfriend” and reported that Swisher was
“physically” fighting with Thobhani and that she saw Thobhani “flat on her back on the
porch.” (State’s Ex. 1). While Garding was talking to the dispatcher, she stated that her
two-year-old grandson had just thrown up because he was “so upset over this.” (State’s
Ex. 1). Garding then called the 911 operator back a second time to inform the dispatcher
that Swisher had left the scene in a 2003 silver Taurus SES. When Garding was on the
1
Ind. Code § 35-42-2-1.3(a).
2
phone with the dispatcher, she confirmed that Swisher had hurt Thobhani and that
Thobhani had marks on her.
When Officer Bewley arrived on the scene, he noticed that Thobhani was “very
upset” and that she had “some marks on her neck that [he] could obviously see.” (Tr. 8).
Thobhani also showed Officer Bewley that she had additional injuries, including scrapes
on her leg and lower back. Officer Bewley took photographs of Thobhani’s injuries and
of a broken chair on the front porch. Thobhani completed a voluntary written statement,
which provided:
My boyfriend, Maxwell Swisher, came into the kitchen where I was talking
to Tammy Garding, his mother. He then proceeds to get right up in my
face, nose-to-nose, and yells obscenities and other profanities at me. The
argument then moves into [Garding’s] bedroom where he the[n] pins me to
the bed and continues to yell at me, and raises his fist to hit me. I then go
outside to get away from him. I then open the door back up [be]cause I
hear my son crying, he then pushes me out the door, shoves me down onto
a plastic deck chair, which breaks, then continues to hold me down onto it,
took my cigarette from my hand and burns me on the neck with it, he then
also proceeds to go to kick and hit me. That is when his mother and
stepfather, and the kids came outside. ALL of this took place in front of the
children [ages 13, 10, 6, and 2].
(State’s Exhibit 4). While Thobhani was writing her statement, Officer Bewley spoke
with Garding, who was also “upset.” (Tr. 9). Garding also wrote out a voluntary
statement, which provided:
Max [Swisher] came into the kitchen where I, Tammy Garding, was talking
to [Thobhani]. He proceeded to berate [Thobhani] and get in her face and
yell and push her around. A little later I was in my bedroom when
[Thobhani] came in to talk to me. [Swisher] burst in and yelled at
[Thobhani] and pinned her down yelling at her. A little later I heard my
grandsons screaming, so I came out to find my 2 year old grandson, T.S.,
screaming because [Swisher] and [Thobhani] were having a physical
altercation on the porch. [Swisher] pushed [Thobhani] down and it was at
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this time that I called the police. [Swisher] then sped off in a silver, 2003
Taurus SES.
(State’s Exhibit 3). Both Thobhani and Garding returned their statements to Officer
Bewley that night.
The State originally charged Swisher with Class D felony domestic battery but
later amended it to Class A misdemeanor domestic battery. On March 15, 2013, the trial
court held a bench trial. During the State’s opening argument, the prosecutor informed
the trial court that the State was planning to introduce Thobhani’s and Garding’s written
statements from the night of the incident, which she stated were “excited utterances” and
were “truthful statements” of what happened that night. (Tr. 4). The prosecutor,
however, warned the trial court that she was unsure of exactly how these witnesses would
testify at trial due to their relationship with Swisher and their current desire that he not
get into trouble. During Swisher’s opening statement, his attorney stated that Swisher’s
defense was that the State would not be able to present evidence to support every element
of domestic battery. Swisher’s attorney stated that Thobhani and Garding would testify
that they had made “mistakes” and “assumptions” under the existing “hysteria” of the
night and that “once it had all settled out later they realized that what they ha[d] said in
their statement[s] [was]n’t exactly what [had] happened.” (Tr. 5).
When the State called Thobhani and Garding as witnesses to testify, they both
repudiated their prior written statements. Thobhani admitted that she wrote out and
signed her written statement but asserted that she wrote the allegations in the statement
because she was confused, upset, and “going off of what [Garding] had stated.” (Tr. 39).
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Thobhani claimed that she never spoke to Officer Bewley and that only Garding spoke to
the officer. Thobhani claimed that she and Swisher only verbally argued but that he
never physically touched her in the kitchen, never pinned her down in the bedroom, and
never shoved her or touched her on the porch. Instead, Thobhani maintained that she
injured her leg and lower back by tripping over rollerblades and falling on and breaking
the plastic chair on the front porch. Thobhani also testified that she burned her own neck
with a cigarette that she was holding when she fell on the chair.
Garding also admitted that she wrote out and signed her written statement but
claimed that never saw Swisher physically touch Thobhani at any point that night.
Garding also admitted that she called 911 the first time but testified that she did not
remember calling 911 the second time. Garding contended that she called 911 based on a
“misunderstanding” and that she had “jumped to a conclusion” when she saw Thobhani
lying on her back on the porch. (Tr. 17).
When the State introduced the recording of the two 911 calls (State’s Exhibit 1),
Garding’s written statement (State’s Exhibit 3), and Thobhani’s written statement (State’s
Exhibit 4), into evidence, Swisher did not object and affirmatively stated that he had
“[n]o objection” to the admission of these exhibits. (Tr. 18, 22, 38).
After the State rested, Swisher moved for a directed verdict, arguing that the State
had failed to present any evidence that Swisher had touched Thobhani in a rude, insolent,
or angry manner. The State argued that the written statements and 911 calls were excited
utterances and were being used as substantive evidence and asserted that the trial court
needed to weigh the credibility of that evidence against the witnesses’ in-trial testimony.
5
The trial court denied Swisher’s motion. Swisher then testified on his own behalf and
stated that he yelled at Thobhani in the kitchen and bedroom and on the porch, but he
testified that he did not shove or hit her. The trial court found Swisher guilty as charged.
The trial court imposed a fourteen (14) day sentence in the Boone County Jail with credit
for time served. Swisher now appeals his conviction.
DECISION
Swisher argues that the evidence was insufficient to support his conviction for
Class A misdemeanor domestic battery.
When reviewing the sufficiency of the evidence to support a conviction,
appellate courts must consider only the probative evidence and reasonable
inferences supporting the verdict. It is the fact-finder’s role, not that of
appellate courts, to assess witness credibility and weigh the evidence to
determine whether it is sufficient to support a conviction. To preserve this
structure, when appellate courts are confronted with conflicting evidence,
they must consider it most favorably to the [jury’s verdict]. Appellate
courts 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.
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks and
citations omitted) (emphasis in original).
Indiana Code § 35-42-2-1.3(a) provides that a person commits Class A
misdemeanor domestic battery when he knowingly or intentionally touches an individual
with whom he has a child in common in a rude, insolent, or angry manner that results in
bodily injury to that person.
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Swisher contends that there was insufficient evidence to support the element of a
rude, insolent, or angry touching because Thobhani and Garding testified that Swisher did
not physically touch Thobhani. Swisher acknowledges that the evidence of the 911 call
(State’s Exhibit 1), Garding’s written statement (State’s Exhibit 3), and Thobhani’s
written statement (State’s Exhibit 4) provides evidence that he touched Thobhani in a
rude, insolent, or angry manner; however, he now contends on appeal that these exhibits
were either improperly admitted into evidence or improperly used as substantive
evidence. We cannot agree.
First, Swisher’s contention that the evidence was insufficient because Thobhani’s
and Garding’s in-trial testimony did not provide evidence of a physical touching is
nothing more than an invitation to reweigh the evidence against their written statements
and to judge the credibility of the witnesses, which we will not do. See Drane, 867
N.E.2d at 146. Additionally, to the extent that Swisher is attempting to challenge the
admissibility of State’s Exhibits 1, 3, and 4, he has waived any such appellate challenge
because he did not object to the these exhibits at trial. In fact, he affirmatively stated that
he had “[n]o objection” to the admission of this evidence. (Tr. 18, 22, 38).
Consequently, Swisher has waived appellate review of his claim of error.2 See, e.g.,
Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (holding that defendant, who did not
object to evidence upon introduction of evidence and who affirmatively stated he had no
objection, waived review of his argument that evidence was unlawfully seized), reh’g
denied; Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000) (“The failure to make a
2
Swisher fails to acknowledge his lack of objection to the evidence he now claims was improperly
admitted, and he does not argue that fundamental error occurred by the admission of this evidence.
7
contemporaneous objection to the admission of evidence at trial results in waiver of the
error on appeal.”).
Because there was probative and unchallenged evidence from which the trial
court—as trier of fact in this bench trial—could have found that Swisher touched
Thobhani in a rude, insolent, or angry manner, we affirm his conviction for Class A
misdemeanor domestic battery.
Affirmed.
MATHIAS, J., and BRADFORD, J., concur.
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Maxwell Swisher v. State of Indiana
Combined Opinion