Janise K. Cox v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 23, 2017
• Docket: 49A04-1703-CR-519
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 23 2017, 9:26 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. Burns Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Janise K. Cox, August 23, 2017 Appellant-Defendant, Court of Appeals Case No. 49A04-1703-CR-519 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Appellee-Plaintiff. David E. Lewis, Judge Pro Tempore Trial Court Cause No. 49G17-1607-F6-27433

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-519 | August 23, 2017 Page 1 of 5 [1] Janise K. Cox (“Cox”) appeals her conviction for Class A misdemeanor

domestic battery,1 challenging the sufficiency of the State’s evidence.

[2] We affirm.

Facts and Procedural History [3] Cox and M.G. (“M.G.”) are the parents of two children. They have been

separated for years and have an agreed custody arrangement. On July 3, 2016,

M.G. arrived at Cox’s mother’s home to drop off the children. M.G.’s friend,

Kevin Hunter (“Hunter”), was a passenger in M.G.’s truck at the time of the

exchange. Cox appeared by M.G.’s truck and yelled at him concerning child

support. Cox became “kind of aggressive,” so M.G. used his cell phone to

record some of the incident. Tr. at 12. Cox hit M.G. with a closed fist in the

face, he called 911, and she continued to try to hit him. Cox stopped when her

stepfather came out of the house and intervened.

[4] The State charged Cox with count I, Level 6 felony domestic battery, and count

II, Class A misdemeanor domestic battery. At the bench trial, M.G. testified

that when he arrived at Cox’s mother’s home, he got out of the car briefly, as

the kids exited and walked to the house, and Cox appeared unexpectedly at the

back of his truck. As he tried to get back into the vehicle, she prevented him

from closing his door and yelled at him. M.G. testified that Cox “punched”

1 See Ind. Code § 35-42-2-1.3(a)(1).

Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-519 | August 23, 2017 Page 2 of 5 him with a closed fist and that he received bruises to the side of his face. Id.; see

also id. at 19 (“She landed a punch on the side of my face.”). M.G.’s cell phone

video recording was admitted over Cox’s objection. M.G. stated that he

stopped recording as he called 911 and held out his arm to try “to keep her from

hitting me[,]” but she continued to “swing” at him. Id. at 14.

[5] Hunter, who was seated in the truck when the children and M.G. got out of the

vehicle, testified that Cox and M.G. “started arguing” and that Cox “swung on

[M.G.].” Id. at 22-23. Cox also testified at trial, stating that she and M.G.

argued and that she pushed M.G.’s phone out of her face, but she denied that

she hit M.G.

[6] After the State rested, Cox moved for and was granted involuntary dismissal as

to count I. Finding that M.G. was “very believable” and Cox was “not very

believable at all,” the trial court found Cox guilty of Class A misdemeanor

domestic battery. Id. at 34. Cox now appeals.

Discussion and Decision [7] Cox argues that the evidence was insufficient to support her conviction for

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,

Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-519 | August 23, 2017 Page 3 of 5 they must consider it most favorably to the trial court’s ruling. 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). “A conviction can be sustained

on only the uncorroborated testimony of a single witness, even when that

witness is the victim.” Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).

[8] To convict Cox of domestic battery as a Class A misdemeanor, the State was

required to prove beyond a reasonable doubt that she knowingly touched M.G.

in a rude, insolent, or angry manner. Ind. Code § 35-42-2-1.3(a)(1). Cox

alleges on appeal that the evidence does not establish the element of touching

M.G. in a rude, insolent, or angry manner.

[9] On appeal, Cox suggests that M.G.’s video recording did not show her touch or

hit M.G., and argues that, although M.G. testified that she punched him, he

“had a motive to fabricate a story” and “exaggerate the account of the

situation,” in order to “get back at [Cox].” Appellant’s Br. at 9. Cox’s argument

is merely a request for us to reweigh the evidence on appeal, which we cannot

do. Palacios v. State, 926 N.E.2d 1026, 1034 (Ind. Ct. App. 2010). The State

presented sufficient evidence to convict Cox of Class A misdemeanor domestic

battery.

Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-519 | August 23, 2017 Page 4 of 5 [10] Affirmed.

[11] Najam, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-519 | August 23, 2017 Page 5 of 5