Antionne Lamar Brewster v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 7, 2015
• Docket: 06A01-1502-CR-66
• Status: Published

Opinion

MEMORANDUM DECISION Oct 07 2015, 9:37 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before 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 APPELLEES Sergey Grechukhin Gregory F. Zoeller Kirtley, Taylor, Sims, Chadd & Minnette, Attorney General of Indiana P.C. Richard C. Webster Lebanon, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Antionne Lamar Brewster, October 7, 2015

Appellant-Defendant, Court of Appeals Case No. 06A01-1502-CR-66

v. Appeal from the Boone Superior Court The Honorable Matthew C. Kincaid, State of Indiana, Judge Appellee-Plaintiff. Trial Court Cause No. 06D01-1411- F6-183

Bradford, Judge.

Case Summary [1] Appellant-Defendant Antionne Brewster and J.P had been romantically

involved for approximately four years as of November of 2014. On November

Court of Appeals of Indiana | Memorandum Decision 06A01-1502-CR-66 | October 7, 2015 Page 1 of 6 12, 2014, Brewster and J.P. argued over a telephone call J.P. received from a

male coworker. When J.P. locked herself and her three children in a bedroom,

Brewster broke the door open and proceeded to push, smack, choke, and bite

J.P. J.P.’s children were in the “next room” when Brewster’s assault on J.P.

occurred. Appellee-Plaintiff the State of Indiana eventually charged Brewster

with two counts of Level 6 felony domestic battery, Level 6 felony

strangulation, and Class A misdemeanor domestic battery. The trial court

found Brewster guilty as charged and sentenced him to two and one-half years

each for Level 6 felony domestic battery and Level 6 felony strangulation, both

sentences to be served consecutively. Brewster contends that the State

produced insufficient evidence to sustain his conviction for Level 6 felony

domestic battery. Concluding that the State produced sufficient evidence to

sustain the challenged conviction, we affirm.

Facts and Procedural History [2] By November of 2014, Brewster and J.P. had been romantically involved for

approximately four years, were living together, and considered themselves to be

husband and wife. (Tr. 29). At the time, J.P. had three children, all of whom

were under the age of thirteen and none of whom were biologically Brewster’s.

During the morning of November 12, 2014, Brewster and J.P. began arguing

after J.P. received a telephone call from a male coworker. (Tr. 39). Brewster

accused J.P. of “sleep[ing] around” and called her “[a] ho.” Tr. pp. 30, 31.

Court of Appeals of Indiana | Memorandum Decision 06A01-1502-CR-66 | October 7, 2015 Page 2 of 6 [3] Later, J.P. locked herself and her children in a bedroom, but Brewster “was not

pleased with the door being locked and busted it in.” Tr. p. 31. Brewster

pushed, smacked, and choked J.P. and “bit [her] on the face.” Tr. p. 32.

During the attack, J.P.’s children “were in the next room.” Tr. p. 32.

[4] On November 13, 2014, the State charged Brewster with Level 6 felony

strangulation and Level 6 felony domestic battery. (Appellant's App. 37). On

December 29, 2014, the State amended the charging information to add Count

III, Class A misdemeanor domestic battery and Count IV, Level 6 felony

domestic battery. (Appellant's App. 26-27). On January 12, 2015, the trial

court conducted a bench trial, after which it found Brewster guilty as charged.

(Appellant's App. 74-75). On February 5, 2015, the trial court entered

judgment of conviction for one count of Level 6 felony domestic battery and

Level 6 felony strangulation. (Tr. 101). That day, the trial court sentenced

Brewster to two and one-half years of incarceration for each conviction, both

sentences to be served consecutively. (Tr. 101-02).

Discussion and Decision Whether the State Produced Sufficient Evidence to Sustain Brewster’s Conviction for Level 6 Felony Domestic Battery [5] Brewster contends that the State produced insufficient evidence to sustain his

Level 6 felony domestic battery conviction. When reviewing the sufficiency of

the evidence, we neither reweigh the evidence nor resolve questions of

Court of Appeals of Indiana | Memorandum Decision 06A01-1502-CR-66 | October 7, 2015 Page 3 of 6 credibility. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995). We look only to

the evidence of probative value and the reasonable inferences to be drawn

therefrom which support the verdict. Id. If from that viewpoint there is

evidence of probative value from which a reasonable trier of fact could conclude

that the defendant was guilty beyond a reasonable doubt, we will affirm the

conviction. Spangler v. State, 607 N.E.2d 720, 724 (Ind. 1993).

[6] Brewster challenges only the sufficiency of the State’s evidence to establish that

he committed his battery of J.P. within the physical presence of her three

children, which raises his domestic battery from a misdemeanor to a Level 6

felony. Indiana Code section 35-42-2-1.3 provides, in 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); or … 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. (b) However, the offense under subsection (a) is a Level 6 felony if the person who committed the offense: …. (2) committed the offense 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.

[7] Indiana Code section 35-42-2-1.3 requires only “the possibility that [the

children] ‘might’ see or hear [the domestic battery].” True v. State, 954 N.E.2d

Court of Appeals of Indiana | Memorandum Decision 06A01-1502-CR-66 | October 7, 2015 Page 4 of 6 1105, 1111 (Ind. Ct. App. 2011). “‘Presence’ is defined as knowingly being

within either the possible sight or hearing of a child.” Id. (emphasis omitted).

[8] We conclude that the State proved that Brewster committed his domestic

battery of J.P. in the physical presence of her three children. Brewster testified

that he was aware that the children were present when the argument began, and

the trial court was free to infer that he saw them again when he knocked in

J.P.’s door directly before battering her. J.P. testified that as Brewster pushed,

hit, choked, and bit her, her children were “in the next room.” Tr. p. 32.

Brewster argues that J.P.’s testimony is unclear regarding whether the children

were in the next room when he bit J.P., but we believe that a fair reading of the

testimony in question indicates otherwise:

Q. How did he touch you? A. He was pushing me, smacking me, he choked me out and bit me on my face? Q. When you say he choked you out, what part of his body did he put on what part of your body? A. He was laying on top of me and his hands were around my throat. Q. Were you able to breathe while that was happening? A. For the most part. Q. Did you have trouble breathing? A. Yes. Q. Did you have any trouble speaking or saying anything at that time? A. Yes. Q. Where were the children when that was going on? A. They were in the next room.

Tr. p. 32.

Court of Appeals of Indiana | Memorandum Decision 06A01-1502-CR-66 | October 7, 2015 Page 5 of 6 We conclude that the State produced sufficient evidence to sustain a finding

that the children were in the next room during Brewster’s battery of J.P., clearly

within possible sight or hearing of the attack. Brewster’s argument amounts to

an invitation to reweigh the evidence, which we will not do. Jordan, 656

N.E.2d at 817.

[9] The judgment of the trial court is affirmed.

May, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 06A01-1502-CR-66 | October 7, 2015 Page 6 of 6