MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Sep 17 2015, 8:41 am 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 APPELLEE Kimmerly A. Klee Gregory F. Zoeller Greenwood, Indiana Attorney General of Indiana
Cynthia L. Ploughe Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jon Donovan, September 17, 2015 Appellant-Defendant, Court of Appeals Case No. 49A05-1503-CR-86 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Christina R. Appellee-Plaintiff Klineman, Judge Trial Court Cause No. 49G17-1411-F6-50373
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-86 | September 17, 2015 Page 1 of 6 Case Summary [1] Jon Donovan appeals his conviction for level six felony domestic battery,
following a bench trial. The sole issue raised for our review is whether the State
presented sufficient evidence to support the conviction. Finding the evidence
sufficient, we affirm.
Facts and Procedural History [2] The facts most favorable to the conviction indicate that, at the time of the
incident in question, Donovan and Lindsey Kinnard had been in a romantic
relationship for approximately eight years. In October 2014, the couple resided
together in an apartment in Marion County. At approximately 5:30 a.m. on
October 31, Kinnard awoke and went into the kitchen to get something to
drink. The noise caused Donovan, who had fallen asleep on a loveseat in the
living room, to also wake up. As Kinnard walked back to the bedroom,
Donovan followed her. He was angry at her for failing to wake him to come to
bed the previous night, so he began yelling at her. He placed his hand over her
mouth as he yelled. He then grabbed her by the wrists and told her to “get the
eff out.” Tr. at 27. Kinnard’s wrists were “kind of tangled up and [she] was
fighting a little bit, and it hurt and … [she] fell to the ground.” Id. at 27-28.
Donovan then picked her up and pushed her. Kinnard hit the doorjamb and
fell into the hallway. Kinnard suffered pain and bruises. On November 1,
2014, Kinnard called police to report the incident. Donovan was subsequently
arrested.
Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-86 | September 17, 2015 Page 2 of 6 [3] The State charged Donovan with level 6 felony strangulation, class A
misdemeanor domestic battery, level 6 felony criminal confinement, and class
A misdemeanor battery resulting in bodily injury. The State dismissed the
strangulation and criminal confinement charges prior to trial. A bench trial was
held on January 15, 2015. The trial court found Donovan guilty of battery and
domestic battery. Thereafter, in exchange for the dismissal of the battery
charge, Donovan agreed to the enhancement of the domestic battery to a level 6
felony based upon his prior conviction for domestic battery. Consequently, the
trial court entered judgment of conviction for one count of domestic battery as a
level 6 felony. This appeal followed.
Discussion and Decision [4] Donovan challenges the sufficiency of the evidence to support his conviction for
level 6 felony domestic battery. When reviewing the sufficiency of the evidence
to support a conviction, we examine only the probative evidence and
reasonable inferences that support the conviction. Morgan v. State, 22 N.E.3d
570, 573 (Ind. 2014). We do not assess witness credibility or reweigh evidence.
Id. Rather, we consider only the evidence most favorable to the trial court’s
ruling and will affirm the conviction unless no reasonable factfinder could find
the elements of the crime proven beyond a reasonable doubt. Id. The evidence
will be deemed sufficient if an inference may reasonably be drawn from it to
support the conviction. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).
Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-86 | September 17, 2015 Page 3 of 6 [5] Indiana Code Section 35-42-2-1.3(a)(2) provides that a person who knowingly
or intentionally touches an individual who is or was living as if a spouse of the
other person, in a rude, insolent, or angry manner that results in bodily injury to
the individual, commits domestic battery, a class A misdemeanor. The offense
becomes a level 6 felony if the person who committed the offense has a
previous, unrelated conviction under this section. Ind. Code § 35-42-2-1.3(b).
In considering whether a person “is or was living as a spouse of another
individual for purposes of subsection (a)(2),” the court shall review:
(1) the duration of the relationship; (2) the frequency of the contact; (3) the financial independence; (4) whether the two (2) individuals are raising children together; (5) whether the two (2) individuals have engaged in tasks directed toward maintaining a common household; and (6) other factors the court considers relevant.
Ind. Code § 35-42-2-1.3(c).
[6] Here, Donovan asserts that the evidence was insufficient to establish that he
and Kinnard were living as if spouses or that Kinnard suffered bodily injury as a
result of the battery. The facts most favorable to the conviction indicate that
Kinnard and Donovan had been in a romantic relationship for approximately
eight years. Kinnard testified that the couple had always resided together
during that eight-year period except for when Donovan was incarcerated and
during very brief periods when they broke up. Kinnard testified that any of
their separations were “not for very long” and they definitely lived together
Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-86 | September 17, 2015 Page 4 of 6 “more often than not.” Tr. at 17. Kinnard testified that on the date of the
battery, she and Donovan lived together in an apartment in Marion County.
She stated that the apartment was the couple’s “only residence” and that they
lived in the apartment along with their pet of over two years, a dog named
“Max.” Tr. at 19.
[7] We have held that the factors listed in Indiana Code Section 35-42-2-1.3(c) do
not serve as a litmus test, and that the “character of the relationship” is the
decisive consideration in determining whether the domestic battery statute
applies. Williams v. State, 798 N.E.2d 457, 461 (Ind. Ct. App. 2003). Indeed
where, as here, the couple is cohabiting and engaged in an ongoing romantic
relationship, “a court would not need undertake further analysis.” See id. The
State presented sufficient evidence to support the trial court’s conclusion that
Kinnard was living “as if a spouse” of Donovan for purposes of Indiana Code
Section 35-42-2-1.3(a)(2).
[8] Regarding bodily injury, pursuant to statute it includes “any impairment of
physical condition, including physical pain.” Ind. Code § 35-31.5-2-29. No
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Sep 17 2015, 8:41 am 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 APPELLEE Kimmerly A. Klee Gregory F. Zoeller Greenwood, Indiana Attorney General of Indiana
Cynthia L. Ploughe Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jon Donovan, September 17, 2015 Appellant-Defendant, Court of Appeals Case No. 49A05-1503-CR-86 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Christina R. Appellee-Plaintiff Klineman, Judge Trial Court Cause No. 49G17-1411-F6-50373
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-86 | September 17, 2015 Page 1 of 6 Case Summary [1] Jon Donovan appeals his conviction for level six felony domestic battery,
following a bench trial. The sole issue raised for our review is whether the State
presented sufficient evidence to support the conviction. Finding the evidence
sufficient, we affirm.
Facts and Procedural History [2] The facts most favorable to the conviction indicate that, at the time of the
incident in question, Donovan and Lindsey Kinnard had been in a romantic
relationship for approximately eight years. In October 2014, the couple resided
together in an apartment in Marion County. At approximately 5:30 a.m. on
October 31, Kinnard awoke and went into the kitchen to get something to
drink. The noise caused Donovan, who had fallen asleep on a loveseat in the
living room, to also wake up. As Kinnard walked back to the bedroom,
Donovan followed her. He was angry at her for failing to wake him to come to
bed the previous night, so he began yelling at her. He placed his hand over her
mouth as he yelled. He then grabbed her by the wrists and told her to “get the
eff out.” Tr. at 27. Kinnard’s wrists were “kind of tangled up and [she] was
fighting a little bit, and it hurt and … [she] fell to the ground.” Id. at 27-28.
Donovan then picked her up and pushed her. Kinnard hit the doorjamb and
fell into the hallway. Kinnard suffered pain and bruises. On November 1,
2014, Kinnard called police to report the incident. Donovan was subsequently
arrested.
Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-86 | September 17, 2015 Page 2 of 6 [3] The State charged Donovan with level 6 felony strangulation, class A
misdemeanor domestic battery, level 6 felony criminal confinement, and class
A misdemeanor battery resulting in bodily injury. The State dismissed the
strangulation and criminal confinement charges prior to trial. A bench trial was
held on January 15, 2015. The trial court found Donovan guilty of battery and
domestic battery. Thereafter, in exchange for the dismissal of the battery
charge, Donovan agreed to the enhancement of the domestic battery to a level 6
felony based upon his prior conviction for domestic battery. Consequently, the
trial court entered judgment of conviction for one count of domestic battery as a
level 6 felony. This appeal followed.
Discussion and Decision [4] Donovan challenges the sufficiency of the evidence to support his conviction for
level 6 felony domestic battery. When reviewing the sufficiency of the evidence
to support a conviction, we examine only the probative evidence and
reasonable inferences that support the conviction. Morgan v. State, 22 N.E.3d
570, 573 (Ind. 2014). We do not assess witness credibility or reweigh evidence.
Id. Rather, we consider only the evidence most favorable to the trial court’s
ruling and will affirm the conviction unless no reasonable factfinder could find
the elements of the crime proven beyond a reasonable doubt. Id. The evidence
will be deemed sufficient if an inference may reasonably be drawn from it to
support the conviction. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).
Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-86 | September 17, 2015 Page 3 of 6 [5] Indiana Code Section 35-42-2-1.3(a)(2) provides that a person who knowingly
or intentionally touches an individual who is or was living as if a spouse of the
other person, in a rude, insolent, or angry manner that results in bodily injury to
the individual, commits domestic battery, a class A misdemeanor. The offense
becomes a level 6 felony if the person who committed the offense has a
previous, unrelated conviction under this section. Ind. Code § 35-42-2-1.3(b).
In considering whether a person “is or was living as a spouse of another
individual for purposes of subsection (a)(2),” the court shall review:
(1) the duration of the relationship; (2) the frequency of the contact; (3) the financial independence; (4) whether the two (2) individuals are raising children together; (5) whether the two (2) individuals have engaged in tasks directed toward maintaining a common household; and (6) other factors the court considers relevant.
Ind. Code § 35-42-2-1.3(c).
[6] Here, Donovan asserts that the evidence was insufficient to establish that he
and Kinnard were living as if spouses or that Kinnard suffered bodily injury as a
result of the battery. The facts most favorable to the conviction indicate that
Kinnard and Donovan had been in a romantic relationship for approximately
eight years. Kinnard testified that the couple had always resided together
during that eight-year period except for when Donovan was incarcerated and
during very brief periods when they broke up. Kinnard testified that any of
their separations were “not for very long” and they definitely lived together
Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-86 | September 17, 2015 Page 4 of 6 “more often than not.” Tr. at 17. Kinnard testified that on the date of the
battery, she and Donovan lived together in an apartment in Marion County.
She stated that the apartment was the couple’s “only residence” and that they
lived in the apartment along with their pet of over two years, a dog named
“Max.” Tr. at 19.
[7] We have held that the factors listed in Indiana Code Section 35-42-2-1.3(c) do
not serve as a litmus test, and that the “character of the relationship” is the
decisive consideration in determining whether the domestic battery statute
applies. Williams v. State, 798 N.E.2d 457, 461 (Ind. Ct. App. 2003). Indeed
where, as here, the couple is cohabiting and engaged in an ongoing romantic
relationship, “a court would not need undertake further analysis.” See id. The
State presented sufficient evidence to support the trial court’s conclusion that
Kinnard was living “as if a spouse” of Donovan for purposes of Indiana Code
Section 35-42-2-1.3(a)(2).
[8] Regarding bodily injury, pursuant to statute it includes “any impairment of
physical condition, including physical pain.” Ind. Code § 35-31.5-2-29. No
particular level of pain is required, as physical pain is, in and of itself, an
impairment of physical condition. Bailey v. State, 979 N.E.2d 133, 138 (Ind.
2012). Kinnard testified that Donovan followed her into the bedroom and
began to yell at her. She described how he grabbed her by the wrists, that “it
hurt,” and that she fell to the ground. Tr. at 27-28. She stated that Donovan
then picked her back up and pushed her out the bedroom door. She hit the
doorjamb and landed in the hallway. Kinnard testified that, as a result of the
Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-86 | September 17, 2015 Page 5 of 6 incident, she suffered pain and bruising on her hip, her legs, and especially her
shoulder. The investigating police officer also testified that he personally
observed bruises on Kinnard. This evidence is sufficient to establish that
Donovan knowingly or intentionally touched Kinnard in a rude, insolent, or
angry manner that resulted in bodily injury to her.
[9] Donovan’s sole argument on appeal is that there was “conflicting” evidence
regarding the couple’s relationship and whether Kinnard suffered any bodily
injury as a result of the battery. Appellant’s Br. at 9. Donovan merely invites
us to assess witness credibility and reweigh the evidence in his favor, which we
may not do. The State presented sufficient evidence to support Donovan’s
domestic battery conviction. Therefore, we affirm.
[10] Affirmed.
May, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-86 | September 17, 2015 Page 6 of 6