Javier A. Simental v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 16, 2016
• Docket: 71A04-1606-CR-1240
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 16 2016, 9:03 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 Sally Skodinski Gregory F. Zoeller South Bend, Indiana Attorney General

Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Javier A. Simental, December 16, 2016 Appellant-Defendant, Court of Appeals Case No. 71A04-1606-CR-1240 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable John M. Appellee-Plaintiff Marnocha, Judge Trial Court Cause No. 71D02-1503-F6-131

Crone, Judge.

[1] A jury found Javier A. Simental guilty of level 6 felony domestic battery, and he

argues that the evidence is insufficient to support his conviction. We affirm. Court of Appeals of Indiana | Memorandum Decision 71A04-1606-CR-1240 | December 16, 2016 Page 1 of 4 [2] In reviewing a claim of insufficient evidence, we do not reweigh the evidence or

judge the credibility of witnesses, and we consider only the evidence–even if

conflicting–that supports the conviction and the reasonable inferences arising

therefrom. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We will affirm

if there is substantial evidence of probative value such that a reasonable trier of

fact could have concluded the defendant was guilty beyond a reasonable

doubt.” Id. The uncorroborated testimony of a single witness is sufficient to

sustain a conviction, even when that witness is the victim. Id.

[3] To convict Simental of level 6 felony domestic battery as charged, the State was

required to prove beyond a reasonable doubt that he knowingly touched a

person with whom he has a child in common in a rude, insolent, or angry

manner resulting in bodily injury to that person in the physical presence of a

child less than sixteen years of age, knowing the child was present and might be

able to see or hear the offense. Ind. Code § 35-42-2-1.3(a), -(b)(2); Appellant’s

App. at 10. Simental claims that the evidence was insufficient to show that he

knowingly struck the victim. “A person engages in conduct knowingly, if when

he engages in the conduct, he is aware of a high probability that he is doing so.”

Ind. Code § 35-41-2-2.

[4] The facts most favorable to the verdict show that in November 2014, Simental

and his girlfriend Liliana Victoria argued over whether their two-year-old child

should go to church with Victoria or stay home with Simental. Victoria took

the child to her bedroom to dress her. Simental grabbed Victoria by the hair

and pulled her out in the hallway with his hand around her neck. In the

Court of Appeals of Indiana | Memorandum Decision 71A04-1606-CR-1240 | December 16, 2016 Page 2 of 4 kitchen, Victoria tried to get her cell phone out of her handbag to call 911.

Victoria and Simental struggled over the phone. Simental “smacked” Victoria

on the head, which hurt “a lot” and “knocked her to the ground.” Tr. at 109,

172. Simental held Victoria on the floor and kicked her. The child followed

them into the kitchen to find Victoria crying. Victoria and the child, who was

also crying, hid behind a furnace and called 911. On the 911 call, Victoria

reported that Simental “had smacked [her] really hard and [she] thought [she]

was going to pass out.” Id. at 112. Police officers arrived at the scene, but

Simental was gone. The police observed that Victoria appeared distraught, was

shaking and red in the face, and had been crying. Victoria had bruises and

marks on her neck and experienced head pain for a few days following the

incident.

[5] Simental asserts that he accidentally struck Victoria and that he so testified at

trial. See id. at 172 (“I didn’t mean to, but I did smack her one time.”). He

observes that although the State charged him with two counts–level 6 felony

strangulation and level 6 felony domestic battery–the jury found him guilty only

on the battery count. According to Simental, the jury must not have given any

weight to Victoria’s testimony regarding the strangulation count, and therefore

the verdict must have been based on what he admitted in his testimony.

Simental’s argument is without merit. “‘The jurors are the triers of fact, and in

performing this function, they may attach whatever weight and credibility to the

evidence as they believe is warranted.’” Parks v. State, 734 N.E.2d 694, 700

(Ind. Ct. App. 2000) (quoting Hicks v. State, 426 N.E.2d 411, 414 (Ind. 1981)).

Court of Appeals of Indiana | Memorandum Decision 71A04-1606-CR-1240 | December 16, 2016 Page 3 of 4 The jury is free to believe some portions and disbelieve other portions of a

witness’s testimony. Id. Simental’s argument is an invitation to reweigh the

evidence, which we must decline. We conclude that the evidence is sufficient

to show that Simental knowingly struck Victoria, and therefore we affirm his

conviction.

[6] Affirmed.

Riley, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A04-1606-CR-1240 | December 16, 2016 Page 4 of 4