MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Oct 05 2016, 9:03 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth Johnson Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Appellate Division Katherine Modesitt Cooper Indianapolis, Indiana Deputy Attorney General Corey L. Scott Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jeffrey Brinkley, October 5, 2016 Appellant-Defendant, Court of Appeals Case No. 49A04-1511-CR-1920 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Angela Dow Davis, Judge Trial Court Cause No. 49G16-1401-FD-994
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1920 | October 5, 2016 Page 1 of 7 [1] Jeffrey Brinkley (“Brinkley”) was convicted after a jury trial of domestic battery1
as a Class D felony, domestic battery2 as a Class A misdemeanor, and battery3
as a Class A misdemeanor4 and was sentenced to an aggregate term of 675 days
executed. Brinkley appeals and raises the following issue for our review:
whether the State presented sufficient evidence to support his convictions.
[2] We affirm.
Facts and Procedural History [3] On December 27, 2013, Rhea Miller (“Miller”) lived in Indianapolis, Indiana
with her two children, T.O. and E.B. Brinkley and Miller had previously dated,
and Brinkley is the father of E.B. On December 27, Brinkley lived with Miller,
but had multiple other girlfriends and was “in and out” of Miller’s house,
staying “wherever he wanted.” Tr. at 77-78. Miller left the house at around
9:00 p.m. to visit her then-boyfriend and returned back to the house right before
midnight. At that time, E.B. was awake, playing video games, and T.O. was
asleep in her room. About ten minutes after Miller arrived home, Brinkley
returned to the house.
1 See Ind. Code § 35-42-2-1.3(b). 2 See Ind. Code § 35-42-2-1.3(a). 3 See Ind. Code § 35-42-2-1(a)(1)(A). 4 We note that, effective July 1, 2014, a new version of these criminal statutes was enacted. Because Brinkley committed his crimes prior to July 1, 2014, we will apply the statutes in effect at the time he committed his crimes.
Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1920 | October 5, 2016 Page 2 of 7 [4] When Brinkley entered the house, he went to the living room and began
“fussing and cussing” and attempted to take Miller’s cell phone from her. Id. at
39. Brinkley yelled at Miller to give him her phone, and Miller refused as she
tried to keep the phone away from him. Brinkley was angry and became
enraged when he learned Miller had been at her boyfriend’s house. Miller left
the living room and walked into the bedroom with Brinkley following her. E.B.
was still in the living room, and the argument between Brinkley and Miller was
loud enough he could hear it. While Miller stood in the bedroom doorway,
Brinkley was able to grab Miller’s cell phone from her hand. Miller snatched
her phone back, and Brinkley then hit Miller multiple times in the face. This
caused Miller to feel pain, “like a stinging sensation and [she] heard something
like ringing in [her] ear, a burning sensation.” Id. at 43. Miller was screaming,
yelling, and trying to fight back as Brinkley hit her. They then “tussled back
and forth,” ending up in T.O.’s room, and Miller fell onto the floor. Id. at 44.
Brinkley was “standing over [Miller] hitting” her and “arguing and cussing.”
Id. at 46, 47. Miller yelled for T.O. to call the police.
[5] T.O. jumped off of the bed and observed Brinkley standing over Miller. T.O.
also saw E.B. standing in the hallway near the bathroom, watching Brinkley
and Miller. T.O. grabbed a fan and hit Brinkley with it, and Brinkley ran out of
the bedroom, down the hallway, and out the front door. T.O. chased Brinkley
all the way to the front porch and then stopped. As Brinkley ran out of the
house, he passed E.B. standing in the hallway. Although Brinkley had
Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1920 | October 5, 2016 Page 3 of 7 undergone surgery to repair his ankle on December 20, 2013, he was able to
walk without using a cane, walker, or crutches at the time of the incident.
[6] T.O. called 911, and Indianapolis Metropolitan Police Department Officer
Jeffrey Gray (“Officer Gray”) responded to Miller’s home. Miller told Officer
Gray that she had been “struck in the upper body five times causing her pain”
and that she had ringing in her right ear. Id. at 98. When she spoke with
Officer Gray, Miller was “nervous, scared, upset,” and she had a bruise or
bump on the side of her hand from her fight with Brinkley. Id. at 55, 57. On
the night of the altercation, T.O. noticed a mark on Miller’s upper cheek. Two
days after the incident, Miller developed a black eye.
[7] The State charged Brinkley with Class D felony domestic battery, Class A
misdemeanor domestic battery, and two counts of Class A misdemeanor
battery. On the morning of the jury trial, the State dismissed one of the Class A
misdemeanor battery charges. A jury found Brinkley guilty of the remaining
charges, and the trial court sentenced him to an aggregate sentence of 675 days
executed. Brinkley now appeals.
Discussion and Decision [8] The deferential standard of review for sufficiency claims is well settled. When
we review the sufficiency of evidence to support a conviction, we do not
reweigh the evidence or assess the credibility of the witnesses. Boggs v. State,
928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied. We consider only the
evidence most favorable to the verdict and the reasonable inferences that can be
Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1920 | October 5, 2016 Page 4 of 7 drawn from this evidence. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App.
2014), trans. denied. We also consider conflicting evidence in the light most
favorable to the trial court’s ruling. Oster v. State, 992 N.E.2d 871, 875 (Ind. Ct.
App. 2013), trans. denied. We will not disturb the jury’s verdict if there is
substantial evidence of probative value to support it. Fuentes, 10 N.E.3d at 75.
We will affirm unless no reasonable fact-finder could find the elements of the
crime proven beyond a reasonable doubt. Lock v. State, 971 N.E.2d 71, 74 (Ind.
2012). As the reviewing court, we respect “the jury’s exclusive province to
weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Oct 05 2016, 9:03 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth Johnson Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Appellate Division Katherine Modesitt Cooper Indianapolis, Indiana Deputy Attorney General Corey L. Scott Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jeffrey Brinkley, October 5, 2016 Appellant-Defendant, Court of Appeals Case No. 49A04-1511-CR-1920 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Angela Dow Davis, Judge Trial Court Cause No. 49G16-1401-FD-994
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1920 | October 5, 2016 Page 1 of 7 [1] Jeffrey Brinkley (“Brinkley”) was convicted after a jury trial of domestic battery1
as a Class D felony, domestic battery2 as a Class A misdemeanor, and battery3
as a Class A misdemeanor4 and was sentenced to an aggregate term of 675 days
executed. Brinkley appeals and raises the following issue for our review:
whether the State presented sufficient evidence to support his convictions.
[2] We affirm.
Facts and Procedural History [3] On December 27, 2013, Rhea Miller (“Miller”) lived in Indianapolis, Indiana
with her two children, T.O. and E.B. Brinkley and Miller had previously dated,
and Brinkley is the father of E.B. On December 27, Brinkley lived with Miller,
but had multiple other girlfriends and was “in and out” of Miller’s house,
staying “wherever he wanted.” Tr. at 77-78. Miller left the house at around
9:00 p.m. to visit her then-boyfriend and returned back to the house right before
midnight. At that time, E.B. was awake, playing video games, and T.O. was
asleep in her room. About ten minutes after Miller arrived home, Brinkley
returned to the house.
1 See Ind. Code § 35-42-2-1.3(b). 2 See Ind. Code § 35-42-2-1.3(a). 3 See Ind. Code § 35-42-2-1(a)(1)(A). 4 We note that, effective July 1, 2014, a new version of these criminal statutes was enacted. Because Brinkley committed his crimes prior to July 1, 2014, we will apply the statutes in effect at the time he committed his crimes.
Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1920 | October 5, 2016 Page 2 of 7 [4] When Brinkley entered the house, he went to the living room and began
“fussing and cussing” and attempted to take Miller’s cell phone from her. Id. at
39. Brinkley yelled at Miller to give him her phone, and Miller refused as she
tried to keep the phone away from him. Brinkley was angry and became
enraged when he learned Miller had been at her boyfriend’s house. Miller left
the living room and walked into the bedroom with Brinkley following her. E.B.
was still in the living room, and the argument between Brinkley and Miller was
loud enough he could hear it. While Miller stood in the bedroom doorway,
Brinkley was able to grab Miller’s cell phone from her hand. Miller snatched
her phone back, and Brinkley then hit Miller multiple times in the face. This
caused Miller to feel pain, “like a stinging sensation and [she] heard something
like ringing in [her] ear, a burning sensation.” Id. at 43. Miller was screaming,
yelling, and trying to fight back as Brinkley hit her. They then “tussled back
and forth,” ending up in T.O.’s room, and Miller fell onto the floor. Id. at 44.
Brinkley was “standing over [Miller] hitting” her and “arguing and cussing.”
Id. at 46, 47. Miller yelled for T.O. to call the police.
[5] T.O. jumped off of the bed and observed Brinkley standing over Miller. T.O.
also saw E.B. standing in the hallway near the bathroom, watching Brinkley
and Miller. T.O. grabbed a fan and hit Brinkley with it, and Brinkley ran out of
the bedroom, down the hallway, and out the front door. T.O. chased Brinkley
all the way to the front porch and then stopped. As Brinkley ran out of the
house, he passed E.B. standing in the hallway. Although Brinkley had
Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1920 | October 5, 2016 Page 3 of 7 undergone surgery to repair his ankle on December 20, 2013, he was able to
walk without using a cane, walker, or crutches at the time of the incident.
[6] T.O. called 911, and Indianapolis Metropolitan Police Department Officer
Jeffrey Gray (“Officer Gray”) responded to Miller’s home. Miller told Officer
Gray that she had been “struck in the upper body five times causing her pain”
and that she had ringing in her right ear. Id. at 98. When she spoke with
Officer Gray, Miller was “nervous, scared, upset,” and she had a bruise or
bump on the side of her hand from her fight with Brinkley. Id. at 55, 57. On
the night of the altercation, T.O. noticed a mark on Miller’s upper cheek. Two
days after the incident, Miller developed a black eye.
[7] The State charged Brinkley with Class D felony domestic battery, Class A
misdemeanor domestic battery, and two counts of Class A misdemeanor
battery. On the morning of the jury trial, the State dismissed one of the Class A
misdemeanor battery charges. A jury found Brinkley guilty of the remaining
charges, and the trial court sentenced him to an aggregate sentence of 675 days
executed. Brinkley now appeals.
Discussion and Decision [8] The deferential standard of review for sufficiency claims is well settled. When
we review the sufficiency of evidence to support a conviction, we do not
reweigh the evidence or assess the credibility of the witnesses. Boggs v. State,
928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied. We consider only the
evidence most favorable to the verdict and the reasonable inferences that can be
Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1920 | October 5, 2016 Page 4 of 7 drawn from this evidence. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App.
2014), trans. denied. We also consider conflicting evidence in the light most
favorable to the trial court’s ruling. Oster v. State, 992 N.E.2d 871, 875 (Ind. Ct.
App. 2013), trans. denied. We will not disturb the jury’s verdict if there is
substantial evidence of probative value to support it. Fuentes, 10 N.E.3d at 75.
We will affirm unless no reasonable fact-finder could find the elements of the
crime proven beyond a reasonable doubt. Lock v. State, 971 N.E.2d 71, 74 (Ind.
2012). As the reviewing court, we respect “the jury’s exclusive province to
weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).
[9] Brinkley argues that the State failed to present sufficient evidence to support his
convictions. He contends specifically that, although Miller reported being
repeatedly struck, she had no visible injuries and was calm when speaking to
the police. Brinkley also asserts that he produced evidence at trial that he had
recently undergone surgery prior to the incident and was not physically capable
of engaging in the type of behavior alleged by Miller.
[10] In order to convict Brinkley of domestic battery as a Class D felony, the State
was required to prove that he knowingly or intentionally touched Miller, who
was living as if a spouse of Brinkley and/or had a child in common with
Brinkley, in a rude, insolent, or angry manner that resulted in bodily injury to
Miller, and that Brinkley committed the offense in the physical presence of a
child less than sixteen years of age, knowing that the child was present and
might be able to see or hear the offense. Ind. Code § 35-42-2-1.3(b)(2). In order
to convict Brinkley of domestic battery as a Class A misdemeanor, the State
Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1920 | October 5, 2016 Page 5 of 7 was required to prove that he knowingly or intentionally touched Miller, who
was living as if a spouse of Brinkley and/or had a child in common with
Brinkley, in a rude, insolent, or angry manner that resulted in bodily injury to
Miller. Ind. Code § 35-42-2-1.3(a). In order to convict Brinkley of battery as a
Class A misdemeanor, the State was required to prove that he knowingly or
intentionally touched Miller in a rude, insolent, or angry manner that resulted
in bodily injury to Miller. Ind. Code § 35-42-2-1(a)(1)(A).
[11] In the present case, considering the evidence most favorable to the verdict,
Miller testified that Brinkley, with whom she had a child, struck her in the face
multiple times, which caused her to feel pain. Tr. at 42. She stated that the
pain felt like “a stinging sensation” and that she heard “something like a ringing
in [her] ear” and felt “a burning sensation.” Id. at 43. Miller also testified that
she developed a black eye within two days after Brinkley hit her. Id. at 55. “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). Therefore, Miller’s testimony alone was enough to support
Brinkley’s convictions. There was, however, additional evidence to partially
corroborate Miller’s testimony. Officer Gray testified that Miller told him that
“she was struck in the upper body five times causing her pain and she ha[d]
ringing in her right ear.” Tr. at 98. T.O. also testified that she was awoken by a
loud boom and saw Brinkley standing over Miller in the doorway area of her
room. Id. at 82-83. Additionally, T.O. observed a mark on Miller’s upper
Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1920 | October 5, 2016 Page 6 of 7 cheek after the battery occurred. Id. at 89. This evidence was sufficient to
support Brinkley’s convictions.
[12] To the extent that Brinkley is arguing that he could not have committed the
charged offenses because he “was in no physical condition to be fighting, rolling
around on the floor, or running on an ankle that had been operated on the
previous week,” Appellant’s Br. at 9, he is merely requesting this court to
reweigh the evidence, which we cannot do on appeal. Boggs, 928 N.E.2d at
864. Although Brinkley had undergone surgery on his ankle on December 20,
2013, both Miller and T.O. testified that he was able to walk without the
assistance of a cane, crutches, or a walker and was able to drive the day of the
battery. Tr. at 51, 86-87. As he contends in his appellate brief, at trial, Brinkley
did introduce medical records concerning his surgery. However, it is the
factfinder’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.
Hape v. State, 903 N.E.2d 977, 997 (Ind. Ct. App. 2009), trans. denied. The jury
had the opportunity to consider Brinkley’s evidence and to either accept or
reject it, and we do not review its determination on appeal. We, therefore,
conclude that the State presented sufficient evidence to support Brinkley’s
convictions.
[13] Affirmed.
[14] May, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1920 | October 5, 2016 Page 7 of 7