MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any Dec 22 2015, 8:54 am
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
Ana M. Quirk Gregory F. Zoeller
Public Defender Attorney General of Indiana
Muncie, Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
J.B.S., December 22, 2015
Appellant-Defendant, Court of Appeals Case No.
18A05-1505-CR-448
v. Appeal from the Delaware Circuit
Court
State of Indiana, The Honorable Thomas A.
Appellee-Plaintiff. Cannon, Jr., Judge
Trial Court Cause No.
18C05-1406-FD-57
Bradford, Judge.
Case Summary
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[1] On the evening of March 30, 2014, Appellant-Defendant J.B.S. argued with his
then-girlfriend, A.B. At the time of this argument, A.B. resided with J.B.S. in
his apartment. The argument became physical, with J.B.S. choking A.B. until
she lost consciousness. J.B.S. was subsequently convicted of Class A
misdemeanor domestic battery in violation of Indiana Code section 35-42-2-1.3.
[2] On appeal, J.B.S. challenges the constitutionality of Indiana Code section 35-
42-2-1.3, as it was applied to him. Alternatively, J.B.S. argues that the evidence
is insufficient to sustain his conviction. Concluding that J.B.S. has failed to
prove that Indiana Code section 35-42-2-1.3 was unconstitutional as applied to
J.B.S. and that the evidence is sufficient to sustain J.B.S.’s conviction, we
affirm.
Facts and Procedural History
[3] In 2013, J.B.S. and A.B. were both graduate students at Ball State University.
While enrolled at Ball State, both J.B.S. and A.B. resided in Muncie. After
being introduced by a mutual friend, J.B.S. and A.B. entered into a “boyfriend
and girlfriend” relationship in July of 2013. Tr. p. 288. A.B. described this
relationship as a monogamous, intimate relationship. This relationship
continued while A.B. completed an internship in Fishers during the months of
August, September, and October. After completing her internship, A.B.
returned to Muncie in the beginning of November.
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[4] Upon returning to Muncie, A.B. began residing with J.B.S. in his apartment.
A.B. moved all of the belongings which she needed to live into J.B.S.’s
apartment. While residing in the apartment with J.B.S., A.B. helped with
domestic functions such as cooking and cleaning. A.B. and J.B.S. shared the
same bed and engaged in sexual relations. A.B. also completed a change of
address and listed J.B.S.’s address as the address on her driver’s license.
[5] A.B. continued to reside with J.B.S. in his apartment until she temporarily
relocated to Houston for an internship in January of 2014. J.B.S. and A.B.
planned to again cohabitate after A.B. returned from her internship in Houston.
[6] A.B. and J.B.S. began to encounter problems with their relationship while A.B.
was temporarily in Houston. A.B. attributed these problems, at least in part, to
the distance between them. In March of 2014, J.B.S. flew to Houston to help
A.B. drive back to Muncie. Once in Houston, J.B.S. and A.B. began to argue
and at one point “broke[] up.” Tr. p. 294. They then drove back to Muncie
together.
[7] Once back in Muncie, A.B. and J.B.S. continued to argue. As a result of the
continuing argument, A.B. decided to move out of J.B.S.’s apartment.
However, before she did so, during the evening hours of March 30, 2014, J.B.S.
became physical with A.B.
[8] J.B.S., who outweighed A.B. by approximately fifty to sixty pounds, grabbed
A.B., read a text on A.B.’s cellular phone from A.B.’s mother, and “threw
[A.B.] down onto the bed.” Tr. pp. 314-15. J.B.S. told A.B. “if you want to
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fight, we’ll fight.” Tr. p. 315. J.B.S. then straddled A.B., who began trying to
get away from J.B.S.. J.B.S. placed his hands around A.B.’s neck. A.B. placed
her hands on J.B.S.’s wrists and, in an attempt to get him to stop, “squeeze[ed]
his arms, sticking [her] nails into him.” Tr. p. 317. A.B. was unable to free
herself from J.B.S..
[9] During their struggle, A.B. pleaded with J.B.S. to stop, telling him that he was
hurting her. A.B. became scared after J.B.S. indicated that he “was going to
kill” her. Tr. p. 318. J.B.S. continued choking A.B. until she lost
consciousness.
[10] After regaining consciousness, A.B. fled J.B.S.’s apartment. A.B. made her
way to a nearby apartment. The resident of that apartment notified the police
who came to the scene and documented A.B.’s demeanor and injuries. A.B.
was subsequently transported away from the scene by police.
[11] On June 13, 2014, Appellee-Plaintiff the State of Indiana (the “State”) charged
J.B.S. with Class D felony strangulation, Class A misdemeanor domestic
battery, and Class D felony criminal confinement. Following a three-day jury
trial, the jury found J.B.S. guilty of Class A misdemeanor domestic battery and
not guilty of Class D felony strangulation and Class D felony criminal
confinement. The trial court subsequently imposed a six-month suspended
sentence. This appeal follows.
Discussion and Decision
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I. Whether the Domestic Battery Statute is
Unconstitutionally Vague As Applied to J.B.S.
[12] J.B.S. contends that Indiana Code section 35-42-2-1.3 is unconstitutionally
vague as it applies to him because it is unclear what conduct is necessary to
prove that two individuals were “living as if a spouse of the other person.”
J.B.S.’s entire contention in this regard is supported by the prior decision of this
court in Vaughn v. State, 782 N.E.2d 417 (Ind. Ct. App. 2003). J.B.S.’s reliance
on Vaughn, however, is unavailing, because the Vaughn decision is no longer
good law as it has been superseded by statute. See generally, Williams v. State,
798 N.E.2d 457, 460 n.3 (Ind. Ct. App. 2003) (noting that in an apparent
response to Vaughn, in 2003, the legislature amended Indiana Code section 35-
42-2-1.3 to include factors to be reviewed when determining if a person is or
was living “as if a spouse” of another). J.B.S. makes no claim that the statute,
as amended, is unconstitutionally vague. J.B.S.’s challenge in this regard
therefore fails.
II. Whether the Evidence is Sufficient to Sustain J.B.S.’s
Conviction for Class A Misdemeanor Domestic Battery
[13] J.B.S. also contends that the evidence is insufficient to sustain his conviction for
Class A misdemeanor domestic battery. The Indiana Supreme Court has held
that “[i]t 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.” Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). As
such,
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[w]hen reviewing a challenge to the sufficiency of the evidence
underlying a criminal conviction, we neither reweigh the
evidence nor assess the credibility of witnesses. Wright v. State,
828 N.E.2d 904, 905-06 (Ind. 2005). The evidence—even if
conflicting—and all reasonable inferences drawn from it are
viewed in a light most favorable to the conviction. Rohr v. State,
866 N.E.2d 242, 248 (Ind. 2007). “[W]e affirm if there is
substantial evidence of probative value supporting each element
of the crime from which a reasonable trier of fact could have
found the defendant guilty beyond a reasonable doubt.” Davis v.
State, 813 N.E.2d 1176, 1178 (Ind. 2004).
Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012) (first set of brackets added,
second set of brackets in original).
[14] It is not necessary that the evidence overcome every reasonable hypothesis of
innocence. Drane, 867 N.E.2d at 147. “The evidence is sufficient if an
inference may reasonably be drawn from it to support the verdict.” Id. “In
essence, we assess only whether the verdict could be reached based on
reasonable inferences that may be drawn from the evidence presented.” Baker v.
State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in original). Further, a
conviction can be sustained on only the uncorroborated testimony of a single
witness, even when that witness is the victim. Bailey, 979 N.E.2d at 135 (citing
Ferrell v. State, 565 N.E.2d 1070, 1072-73 (Ind. 1991)). The jury, acting as the
trier-of-fact, is “‘free to believe whomever they wish.’” Klaff v. State, 884
N.E.2d 272, 274 (Ind. Ct. App. 2008) (quoting McClendon v. State, 671 N.E.2d
486, 488 (Ind. Ct. App. 1996)).
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[15] The version of Indiana Code section 35-42-2-1.3 that was in effect on the date
J.B.S. committed the underlying acts provided, in relevant part, as follows:
(a) A person who knowingly or intentionally touches an
individual who:
****
(2) is or was living as if a spouse of the other person
as provided in subsection (c) …
in a rude, insolent, or angry manner that results in bodily injury
to the person described in subdivision (1), (2), or (3) commits
domestic battery, a Class A misdemeanor.
****
(c) In considering whether a person is or was living as a spouse of
another individual for purposes of subsection (a)(2), the court
shall review:
(1) the duration of the relationship;
(2) the frequency of contact;
(3) the financial interdependence;
(4) whether the two (2) individuals are raising
children together;
(5) whether the two (2) individuals have engaged in
tasks directed toward maintaining a common
household; and
(6) other factors the court considers relevant.
[16] In challenging the sufficiency of the evidence to sustain his conviction for Class
A misdemeanor domestic battery, J.B.S. claims that the State failed to prove
that he was living “as if the spouse” of A.B. We have previously concluded
that when reviewing the sufficiency of the evidence relating to whether a
defendant was “living as if a spouse of” their victim, we focus on “the
defendant’s past or present relationship with the victim and whether said
relationship was domestic as defined by statute.” Bowling v. State, 995 N.E.2d
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715, 719 (Ind. Ct. App. 2013). Here, the evidence supports the inference that
such a relationship exists.
[17] The record reveals that J.B.S. and A.B., both students at Ball State University,
had resided together in J.B.S.’s apartment for nearly three months before A.B.
temporarily relocated to Houston for an internship. They had engaged in a
“boyfriend and girlfriend” relationship for several months before residing
together. Tr. p. 288. While residing together in J.B.S.’s apartment, A.B.
moved her belongings into the apartment and helped with domestic functions
such as cooking and cleaning. In addition, A.B. and J.B.S. shared the same bed
and engaged in sexual relations. A.B. also completed a change of address and
listed J.B.S.’s address as the address on her driver’s license. J.B.S. and A.B.
also planned to cohabitate after A.B. returned from her internship in Houston.
[18] The above-stated facts indicate that J.B.S. and A.B. maintained frequent
contact with one another and engaged in tasks directed toward maintaining a
common household. Further, although A.B. had threatened to move out of
J.B.S.’s apartment during the course of the arguments leading up to the physical
altercation between A.B. and J.B.S., A.B. had yet to do so. As such, we
conclude that the above-stated facts are sufficient to support the inference that
J.B.S. and A.B. were “living as if a spouse of the other.” J.B.S.’s claim to the
contrary amounts to nothing more than an invitation for this court to reweigh
the evidence, which we will not do. See Bailey, 979 N.E.2d at 135. We
therefore conclude that the State presented sufficient evidence to sustain J.B.S.’s
conviction for Class A misdemeanor domestic battery.
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[19] The judgment of the trial court is affirmed.
Baker, J., and Pyle, J., concur.
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