MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 07 2019, 5:46 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Andrew R. Falk Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James Howard Cupp, October 7, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-928 v. Appeal from the Hendricks Superior Court State of Indiana, The Honorable Stephenie LeMay- Appellee-Plaintiff. Luken, Judge Trial Court Cause No. 32D05-1712-F6-1168
Barnes, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-928 | October 7, 2019 Page 1 of 7 Statement of the Case [1] James Howard Cupp appeals his conviction of domestic battery, a Level 6 1 felony. We affirm.
Issue [2] Cupp raises one issue: whether the State presented sufficient evidence to
sustain his conviction.
Facts and Procedural History [3] Cupp and Reina Frey have three children together, all under the age of five.
They used to live together, but Frey and the children went to live with her
parents in late November 2017. Cupp moved in with a friend.
[4] On the night of December 10, 2017, Frey, Cupp, and their children ate dinner
at a restaurant. Next, the family drove around Plainfield and parked in
different lots so that Cupp could see the children and talk with Frey. Frey was
driving her vehicle, a black SUV. Cupp sat in the front passenger seat, and the
three children were in the back seats.
[5] At eleven o’clock, Cupp asked Frey to take him to a hospital because stitches
had come out of his hand. They went to a hospital in Danville, but when they
1 Ind. Code § 35-42-2-1.3 (2016).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-928 | October 7, 2019 Page 2 of 7 arrived, Cupp changed his mind and declined to enter the hospital. Frey drove
Cupp back to his residence in Plainfield, arriving after 11:30 p.m.
[6] Upon arriving at Cupp’s residence, he refused to get out of Frey’s vehicle. Frey
repeatedly told him to get out, but he declined. The two began to argue, and
Cupp, whose feet were resting on the dash, pushed at the windshield. It was
already cracked, but Cupp caused it to develop a second crack on the passenger
side.
[7] Frey took out her cell phone and began to record Cupp because she “didn’t
want to be blamed for the damage on [her] car.” Tr. Vol. II, p. 104. The video
recording shows Cupp reaching toward Frey as he angrily says, “Don’t f*****g
record me.” State’s Ex. 1. After a brief struggle, he took her phone while she
screamed loudly. Cupp threw the phone out of the vehicle, and Frey left the
SUV to pick it up. After she retrieved her phone, Cupp got out of the SUV, and
Frey left with the children.
[8] As she drove away, Frey noticed blood on her phone and then determined that
her bottom lip was swollen and bleeding. Her lip had not been bleeding before
she began to record Cupp. Frey had slipped and fallen as she retrieved her
phone, but she did not recall anything contacting her face as she fell. She drove
to the Plainfield Police Department’s (the PPD) offices.
[9] At 1 a.m. on December 11, 2017, Officer Javier Casas of the PPD was
dispatched to the PPD’s offices to investigate a report of a domestic battery. He
was directed to a black SUV in the parking lot, where he encountered Frey.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-928 | October 7, 2019 Page 3 of 7 She was “quite upset and distraught.” Tr. Vol. II, p. 83. Frey’s three children
were still with her. Officer Casas told her “she was safe,” and “she sorta broke
down a little.” Id. at 84. Medics also arrived at the scene and determined Frey
did not need to go to the hospital. Officer Casas noted the passenger side of the
SUV’s windshield was “shattered.” Id. at 83.
[10] Officer Casas entered the offices with Frey and her children. He interviewed
her, taking an oral and written statement from her. Frey “kept on becoming
emotional and breaking down” during the interview as she discussed what
happened. Id. at 87. Officer Casas took a photograph of Frey’s face.
[11] On December 12, 2017, the State charged Cupp with domestic battery, a Level
6 felony, and criminal mischief, a Class B misdemeanor. The trial court issued
a no-contact order, barring Cupp from contacting Frey.
[12] On January 10, 2018, two days prior to Frey’s deposition in this case, Cupp 2 called Frey. The call was recorded. Cupp asked Frey what she was going to
say, and she said she was going to tell the truth. When he told her she did not
have to go to court, she responded that she had been subpoenaed and was
required to appear. Cupp then threatened to have his attorney charge her with
2 During the call, Cupp pretended to be someone else and repeatedly referred to himself in the third person as “Howie,” although he once referred to himself as “I” rather than “Howie.” State’s Ex. 7. During trial, Frey indicated Cupp was the caller.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-928 | October 7, 2019 Page 4 of 7 a felony, claiming she had attempted to drive away with him in the car against
his will.
[13] A jury determined Cupp was guilty of domestic battery but not guilty of
criminal mischief. The trial court imposed a sentence, and this appeal followed.
Discussion and Decision [14] Cupp claims the State failed to present sufficient evidence to sustain his
conviction. In reviewing such claims, we consider only evidence that supports
the verdict and draw all reasonable inferences therefrom. Richeson v. State, 704
N.E.2d 1008, 1011 (Ind. 1998). We do not reweigh the evidence nor do we
judge the credibility of witnesses. Id. We uphold a conviction if there is
substantial evidence of probative value from which a jury could have found the
defendant guilty beyond a reasonable doubt. Id.
[15] To obtain a conviction of domestic battery as charged, the State was required to
prove beyond a reasonable doubt that: (1) Cupp; (2) who is a person of at least
eighteen years of age; (3) knowingly or intentionally; (4) touched a household
member (Frey); (5) in a rude, insolent, or angry manner; (6) in the physical
presence of a child less than sixteen years of age (their three children). Ind. 3 Code § 35-42-2-1.3 (a)(1) & (b)(2); Appellant’s App. p. 2.
3 A separate subsection of Indiana Code section 35-42-2-1.3 provides that domestic battery is also a Level 6 felony if it results in moderate bodily injury. See Ind. Code § 35-42-2-1.3 (b)(3). The State did not cite that
Court of Appeals of Indiana | Memorandum Decision 18A-CR-928 | October 7, 2019 Page 5 of 7 [16] Cupp argues there is insufficient evidence that he knowingly or intentionally
touched Frey in a rude, insolent, or angry manner. We disagree. Cupp and
Frey argued because Cupp refused to get out of her SUV, and he (intentionally
or not) damaged her windshield. When she began recording him, he angrily
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 07 2019, 5:46 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Andrew R. Falk Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James Howard Cupp, October 7, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-928 v. Appeal from the Hendricks Superior Court State of Indiana, The Honorable Stephenie LeMay- Appellee-Plaintiff. Luken, Judge Trial Court Cause No. 32D05-1712-F6-1168
Barnes, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-928 | October 7, 2019 Page 1 of 7 Statement of the Case [1] James Howard Cupp appeals his conviction of domestic battery, a Level 6 1 felony. We affirm.
Issue [2] Cupp raises one issue: whether the State presented sufficient evidence to
sustain his conviction.
Facts and Procedural History [3] Cupp and Reina Frey have three children together, all under the age of five.
They used to live together, but Frey and the children went to live with her
parents in late November 2017. Cupp moved in with a friend.
[4] On the night of December 10, 2017, Frey, Cupp, and their children ate dinner
at a restaurant. Next, the family drove around Plainfield and parked in
different lots so that Cupp could see the children and talk with Frey. Frey was
driving her vehicle, a black SUV. Cupp sat in the front passenger seat, and the
three children were in the back seats.
[5] At eleven o’clock, Cupp asked Frey to take him to a hospital because stitches
had come out of his hand. They went to a hospital in Danville, but when they
1 Ind. Code § 35-42-2-1.3 (2016).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-928 | October 7, 2019 Page 2 of 7 arrived, Cupp changed his mind and declined to enter the hospital. Frey drove
Cupp back to his residence in Plainfield, arriving after 11:30 p.m.
[6] Upon arriving at Cupp’s residence, he refused to get out of Frey’s vehicle. Frey
repeatedly told him to get out, but he declined. The two began to argue, and
Cupp, whose feet were resting on the dash, pushed at the windshield. It was
already cracked, but Cupp caused it to develop a second crack on the passenger
side.
[7] Frey took out her cell phone and began to record Cupp because she “didn’t
want to be blamed for the damage on [her] car.” Tr. Vol. II, p. 104. The video
recording shows Cupp reaching toward Frey as he angrily says, “Don’t f*****g
record me.” State’s Ex. 1. After a brief struggle, he took her phone while she
screamed loudly. Cupp threw the phone out of the vehicle, and Frey left the
SUV to pick it up. After she retrieved her phone, Cupp got out of the SUV, and
Frey left with the children.
[8] As she drove away, Frey noticed blood on her phone and then determined that
her bottom lip was swollen and bleeding. Her lip had not been bleeding before
she began to record Cupp. Frey had slipped and fallen as she retrieved her
phone, but she did not recall anything contacting her face as she fell. She drove
to the Plainfield Police Department’s (the PPD) offices.
[9] At 1 a.m. on December 11, 2017, Officer Javier Casas of the PPD was
dispatched to the PPD’s offices to investigate a report of a domestic battery. He
was directed to a black SUV in the parking lot, where he encountered Frey.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-928 | October 7, 2019 Page 3 of 7 She was “quite upset and distraught.” Tr. Vol. II, p. 83. Frey’s three children
were still with her. Officer Casas told her “she was safe,” and “she sorta broke
down a little.” Id. at 84. Medics also arrived at the scene and determined Frey
did not need to go to the hospital. Officer Casas noted the passenger side of the
SUV’s windshield was “shattered.” Id. at 83.
[10] Officer Casas entered the offices with Frey and her children. He interviewed
her, taking an oral and written statement from her. Frey “kept on becoming
emotional and breaking down” during the interview as she discussed what
happened. Id. at 87. Officer Casas took a photograph of Frey’s face.
[11] On December 12, 2017, the State charged Cupp with domestic battery, a Level
6 felony, and criminal mischief, a Class B misdemeanor. The trial court issued
a no-contact order, barring Cupp from contacting Frey.
[12] On January 10, 2018, two days prior to Frey’s deposition in this case, Cupp 2 called Frey. The call was recorded. Cupp asked Frey what she was going to
say, and she said she was going to tell the truth. When he told her she did not
have to go to court, she responded that she had been subpoenaed and was
required to appear. Cupp then threatened to have his attorney charge her with
2 During the call, Cupp pretended to be someone else and repeatedly referred to himself in the third person as “Howie,” although he once referred to himself as “I” rather than “Howie.” State’s Ex. 7. During trial, Frey indicated Cupp was the caller.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-928 | October 7, 2019 Page 4 of 7 a felony, claiming she had attempted to drive away with him in the car against
his will.
[13] A jury determined Cupp was guilty of domestic battery but not guilty of
criminal mischief. The trial court imposed a sentence, and this appeal followed.
Discussion and Decision [14] Cupp claims the State failed to present sufficient evidence to sustain his
conviction. In reviewing such claims, we consider only evidence that supports
the verdict and draw all reasonable inferences therefrom. Richeson v. State, 704
N.E.2d 1008, 1011 (Ind. 1998). We do not reweigh the evidence nor do we
judge the credibility of witnesses. Id. We uphold a conviction if there is
substantial evidence of probative value from which a jury could have found the
defendant guilty beyond a reasonable doubt. Id.
[15] To obtain a conviction of domestic battery as charged, the State was required to
prove beyond a reasonable doubt that: (1) Cupp; (2) who is a person of at least
eighteen years of age; (3) knowingly or intentionally; (4) touched a household
member (Frey); (5) in a rude, insolent, or angry manner; (6) in the physical
presence of a child less than sixteen years of age (their three children). Ind. 3 Code § 35-42-2-1.3 (a)(1) & (b)(2); Appellant’s App. p. 2.
3 A separate subsection of Indiana Code section 35-42-2-1.3 provides that domestic battery is also a Level 6 felony if it results in moderate bodily injury. See Ind. Code § 35-42-2-1.3 (b)(3). The State did not cite that
Court of Appeals of Indiana | Memorandum Decision 18A-CR-928 | October 7, 2019 Page 5 of 7 [16] Cupp argues there is insufficient evidence that he knowingly or intentionally
touched Frey in a rude, insolent, or angry manner. We disagree. Cupp and
Frey argued because Cupp refused to get out of her SUV, and he (intentionally
or not) damaged her windshield. When she began recording him, he angrily
told her to stop recording him and reached for her phone. After a short
struggle, Cupp gained control over the telephone and threw it out of the SUV
while Frey screamed loudly.
[17] Cupp left the SUV after Frey retrieved her phone. As she drove away, she
noticed blood was on her phone and her bottom lip was swollen and bleeding.
She had not been bleeding before she began recording Cupp, and she had not
sustained the injury while she retrieved her phone from the ground. A
reasonable jury could have concluded that Frey sustained her injury while
struggling with Cupp. Bodily injury is not an element of the offense charged
here, but the injury is evidence that Cupp knowingly or intentionally touched
Frey in a rude, insolent, or angry manner.
[18] When Officer Casas interviewed Frey, she was distraught and crying. He
noticed her injured lip and took a photograph. Finally, Cupp called Frey two
days before her deposition. He told her she did not have to appear at trial and
further threatened to have his attorney charge her with a felony. Cupp’s
subsection when it charged Cupp, and as a result the State was not required to prove as an element of the offense that Cupp injured Frey.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-928 | October 7, 2019 Page 6 of 7 attempts to intimidate Frey into not testifying undermine his claim that he did
not knowingly or intentionally touch her in a rude, insolent, or angry manner.
[19] The foregoing evidence provided a sufficient basis for the jury to determine
beyond a reasonable doubt that Cupp was guilty of domestic battery because he
struggled with Frey, resulting in her phone striking her face. See Impson v. State,
721 N.E.2d 1275, 1285 (Ind. Ct. App. 2000) (affirming defendant’s conviction
of B misdemeanor battery; defendant committed the required touching by
knocking victim’s glasses off of his face, even though he did not touch the
victim’s body).
[20] Cupp points to Frey’s cross-examination testimony, during which she said that
Cupp did not hit her in a rude, insolent, or angry manner. Cupp further claims
Frey could have injured herself after Cupp got out of her SUV. Finally, Cupp
cites to a statement he gave to Officer Casas, during which he said he did not
intend to hurt Frey. These arguments are all requests to reweigh the evidence,
which our standard of review forbids.
Conclusion [21] For the reasons stated above, we affirm the judgment of the trial court.
[22] Affirmed.
Crone, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-928 | October 7, 2019 Page 7 of 7