MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 30 2018, 9:52 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy J. Burns Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gregory Fisher, January 30, 2018
Appellant-Defendant, Court of Appeals Case No.
49A04-1708-CR-1856
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Christina R.
Appellee-Plaintiff. Klineman, Judge
Trial Court Cause No.
49G17-1707-CM-24454
Najam, Judge.
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Statement of the Case
[1] Gregory Fisher appeals his convictions for domestic battery, as a Class A
misdemeanor, and battery, as a Class A misdemeanor, following a bench trial.
Fisher raises a single issue for our review, namely, whether the State presented
sufficient evidence to support his convictions. We also consider the following
issue: whether Fisher’s two convictions for the same act violate Indiana’s
prohibitions against double jeopardy.
[2] We affirm in part, reverse in part, and remand with instructions.
Facts and Procedural History
[3] In July of 2017, Fisher and Christine Thomas lived together in Indianapolis and
were in a relationship. Thomas had lived with Fisher “[o]n and off for about a
year.” Tr. Vol. 2 at 7. On July 3, Fisher, Thomas, and Thomas’s daughter,
Lorrie, had dinner at a restaurant. There, Fisher became belligerent and began
yelling at Thomas and Lorrie and calling them vulgar names. Thomas and
Lorrie left the restaurant and returned to Thomas’ residence.
[4] About an hour later, Fisher arrived. He “was beating on the door, calling us
names, threatening us, [and] . . . being . . . belligerent.” Id. at 10. Thomas
refused to let Fisher in the residence and instead called the police. The police
arrived thereafter and told Fisher that she “had every right to stay behind that
door until [she] felt safe.” Id. The police then left.
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[5] An hour after the police left, Fisher climbed into the residence through a living
room window. Inside, Fisher again screamed at Thomas and Lorrie. He then
threw an ashtray at Thomas and hit her, which left a bruise on her leg. He also
grabbed Thomas by her arm, which caused her pain, redness, and bruising.
Thomas grabbed a nearby golf club and hit Fisher with it. Fisher then “ran out
the door” and told Thomas she “was going to go to jail.” Id.
[6] Thomas called the police, who thereafter arrived and arrested Fisher. The State
charged Fisher, in relevant part, with one count of domestic battery, as a Class
A misdemeanor, and one count of battery, as a Class A misdemeanor.
Specifically, the State charged Fisher with domestic battery for “grabbing and
squeezing Christina Thomas’ arm,” and the State charged Fisher with battery
for “grabbing and squeezing Christina Thomas’ arm.” Appellant’s App. Vol. II
at 17. After a bench trial, the court found Fisher guilty on those two counts.
The court entered its judgment of conviction and sentenced Fisher accordingly.
This appeal ensued.
Discussion and Decision
Issue One: Sufficiency of the Evidence
[7] Fisher asserts on appeal that the State failed to present sufficient evidence to
support his convictions. “Our standard of review is deferential to the factfinder:
‘we consider only the evidence and reasonable inferences most favorable to the
convictions, neither reweighing evidence nor reassessing witness credibility.’”
Taylor v. State, 86 N.E.3d 157, 163 (Ind. 2017) (quoting Griffith v. State, 59
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N.E.3d 947, 958 (Ind. 2016)). “We will reverse only if no reasonable factfinder
could find [the defendant] guilty.” Id. at 163-64.
[8] According to Fisher: “[t]here was an insufficient amount of evidence to support
these convictions for Domestic Battery and Battery to Christine Thomas where
she was the actual batterer.” Appellant’s Br. at 6. Fisher continues: “the
elements of the crime[s] . . . pertain equally to the actions of” Fisher and
Thomas. Id. at 7. Fisher further asserts that “this house was [his] and he had
every right to be there and should not be prevented from going into his own
house.” Id. at 8. That is, Fisher says that “[h]e is the true victim . . . .” Id.
[9] We reject Fisher’s arguments on appeal. The evidence most favorable to the
trial court’s judgment demonstrates that Fisher committed domestic battery, as
a Class A misdemeanor, when he knowingly or intentionally grabbed Thomas,
who was a household member, in a rude, insolent, or angry manner. See Ind.
Code § 35-42-2-1.3(a)(1) (2017). The evidence further shows that Fisher
committed battery, as a Class A misdemeanor, when he knowingly or
intentionally grabbed Thomas in a rude, insolent, or angry manner, which
resulted in bodily injury to Thomas in the form of pain and bruising. See I.C. §
35-42-2-1(c)(1), (d)(1); see also I.C. § 35-31.5-2-29 (“Bodily injury” includes
“physical pain”). Fisher’s arguments on appeal simply seek to have this Court
disregard the evidence most favorable to the trial court’s judgment and, in the
place of that evidence, rely on evidence Fisher prefers, which we cannot do.
Accordingly, the State presented sufficient evidence to support Fisher’s
convictions.
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Issue Two: Double Jeopardy
[10] Indiana has “long adhered to a series of rules of statutory construction and
common law that are often described as double jeopardy, but are not governed
by the constitutional test[s] set forth” under the Fifth Amendment to the United
States Constitution or Article 1, Section 14 of the Indiana Constitution. Guyton
v. State, 771 N.E.2d 1141, 1143 (Ind. 2002). One of those categories prohibits
“[c]onviction and punishment for a crime which consists of the very same act as
another crime for which the defendant has been convicted and punished.” Id.
(quoting Richardson v. State, 717 N.E.2d 32, 56 (Ind. 1999) (Sullivan, J.,
concurring)). For example, our Supreme Court has prohibited “a battery
conviction” where “the information showed that the identical touching was the
basis of a second battery conviction.” Id. (discussing Richardson, 717 N.E.2d at
56 (Sullivan, J., concurring)).
[11] Here, the information shows that the same touching was the basis for both
Fisher’s conviction for domestic battery and his conviction for battery.
Accordingly, he may not be convicted on both charges. Id. We reverse his
conviction for battery, as a Class A misdemeanor, and remand with instructions
for the trial court to vacate that conviction.
[12] Affirmed in part, reversed in part, and remanded with instructions.
Mathias, J., and Barnes, J., concur.
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