MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 05 2016, 9:07 am
regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffrey E. Kimmell Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kazie Sekou Cole, October 5, 2016 Appellant-Defendant, Court of Appeals Case No. 71A04-1604-CR-883 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Elizabeth A. Hardtke, Magistrate Trial Court Cause No. 71D05-1508-CM-3019
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A04-1604-CR-883 | October 5, 2016 Page 1 of 7 [1] Kazie Sekou Cole (“Cole”) was convicted following a bench trial of battery
resulting in bodily injury,1 a Class A misdemeanor. Cole appeals, contending
that the evidence was not sufficient to support his conviction.
[2] We affirm.
Facts and Procedural History [3] The facts most favorable to the verdict reveal that, in June 2015, Shanita
Osborne (“Osborne”) rented a room from Cole at his residence on Grant Street
in South Bend, Indiana. On June 29, while Osborne was out of the house
visiting her mother, a disconnection notice was placed on Cole’s door,
informing him that his electricity would be turned off due to an overdue
account. Cole, believing that Osborne owed him money, called Osborne and
arranged to meet her to discuss the matter. As agreed, Cole picked up Osborne
and drove her back to the Grant Street residence. Osborne testified that the two
had a “nice drive” and talked casually. Tr. at 6.
[4] At the residence, however, Cole’s attitude changed. He locked the doors to the
residence and told Osborne that she owed him money. Osborne denied that she
owed Cole money and told him she was moving out. Cole grabbed Osborne’s
phones, and the two began to argue. Cole did not allow Osborne to leave the
residence, and when Osborne reached to retrieve her phones, Cole punched her
1 See Ind. Code § 35-42-2-1.
Court of Appeals of Indiana | Memorandum Decision 71A04-1604-CR-883 | October 5, 2016 Page 2 of 7 in the left eye with a closed fist. The punch caused Osborne “very much” pain
and made her left eye bloodshot. Id. at 7-8, 15-16. The punch also left Osborne
with a blackened left eye and a one-half inch cut under her eye, which bled onto
her clothing. Id. at 8, 11, 19; State’s Exs. 1, 2, 6, 7.
[5] Cole instructed Osborne to take a shower to wash off the blood and to put on
fresh clothes, which she did. Osborne again asked Cole to return her phones so
that she could leave the residence. Cole responded by taking money from
Osborne’s purse and telling her she had a smart mouth and “wasn’t going
anywhere.” Tr. at 9. To prevent Osborne from leaving, Cole gave her two
sleeping pills, hoping she would fall asleep. Id. Osborne initially refused to
swallow them, but when Cole “started getting aggressive again,” Osborne took
the pills, lay down on the bed, and fell asleep. Id. at 9-10.
[6] Osborne awoke the next day, and discovering that Cole was at work, she called
the police. Officer Devon Gilbert (“Officer Gilbert”) of the South Bend Police
Department responded to the scene. Officer Gilbert saw no evidence of a fight,
but observed the cut under Osborne’s left eye and noted that the corner of her
left eye was bloodshot and swelling. Id. at 21-22. Osborne told Officer Gilbert
that Cole punched her in the face with his fist. She also said that Cole kicked
her, cursed at her, and said, “I told you what I was capable of.” Id. at 26.
Osborne showed Officer Gilbert her bloody clothing and the blood stains on a
wrist brace she had been wearing. Id. at 22; State’s Exs. 4, 7. Osborne identified
Cole as her attacker. Tr. at 24.
Court of Appeals of Indiana | Memorandum Decision 71A04-1604-CR-883 | October 5, 2016 Page 3 of 7 [7] The State charged Cole with Class A misdemeanor battery. During the bench
trial, Cole admitted that he and Osborne argued, but denied that he punched
her. Cole testified that the two argued because Cole was evicting Osborne, and
he would not allow Osborne to use his vehicle to find a new place to live. Cole
suggested that Osborne had made up the story about being punched in the eye
“because she was already planning to leave [Cole’s] residence.” Id. at 42-43.
The trial court found Cole guilty, explaining, “I believe the [S]tate proved the
case beyond a reasonable doubt. I find Ms. Osborne to be much more credible
than you[,] combined with the corroborating photographs, her statements of
events. I don’t believe what you said was true or accurate, Mr. Cole.” Id. at
48-49. The trial court imposed a 365-day executed sentence. Cole now
appeals.
Discussion and Decision [8] Cole argues that there was insufficient evidence to support his conviction for
battery resulting in bodily injury as a Class A misdemeanor. More precisely, he
contends, “The State’s evidence consists of Ms. Osborne’s unsubstantiated
testimony and photographic exhibits of injuries that could have been inflicted
by anyone. Mr. Cole’s denial of wrongdoing coupled with the indisputable
facts that he was not present at the time of the report and the officer’s failure to
contact him for a statement give rise to reasonable doubt and show that Mr.
Cole’s conviction is based upon ‘vague evidence.’” Appellant’s Br. at 8.
[9] The deferential standard of review for sufficiency claims is well settled. In
reviewing the sufficiency of evidence to support a conviction, we do not Court of Appeals of Indiana | Memorandum Decision 71A04-1604-CR-883 | October 5, 2016 Page 4 of 7 reweigh the evidence or assess the credibility of the witnesses. Pugh v. State, 52
N.E.3d 955, 966 (Ind. Ct. App. 2016), trans. denied. We consider only the
evidence most favorable to the verdict and the reasonable inferences that can be
drawn from that evidence. Id. 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. “‘If a reasonable trier of fact could have
found the defendant guilty based on the probative evidence and reasonable
inferences drawn therefrom, then a conviction will be affirmed.’” Holloway v.
State, 51 N.E.3d 376, 378 (Ind. Ct. App. 2016) (quoting Sargent v. State, 875
N.E.2d 762, 767 (Ind. Ct. App. 2007)), trans. denied.
[10] In order to convict Cole of battery resulting in bodily injury, a Class A
misdemeanor, the State was required to prove that he knowingly or
intentionally touched Osborne in a rude, insolent, or angry manner that
resulted in bodily injury to Osborne. Ind. Code § 35-42-2-1. Cole challenges
only the determination that he was the one who committed the battery. The
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 05 2016, 9:07 am
regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffrey E. Kimmell Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kazie Sekou Cole, October 5, 2016 Appellant-Defendant, Court of Appeals Case No. 71A04-1604-CR-883 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Elizabeth A. Hardtke, Magistrate Trial Court Cause No. 71D05-1508-CM-3019
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A04-1604-CR-883 | October 5, 2016 Page 1 of 7 [1] Kazie Sekou Cole (“Cole”) was convicted following a bench trial of battery
resulting in bodily injury,1 a Class A misdemeanor. Cole appeals, contending
that the evidence was not sufficient to support his conviction.
[2] We affirm.
Facts and Procedural History [3] The facts most favorable to the verdict reveal that, in June 2015, Shanita
Osborne (“Osborne”) rented a room from Cole at his residence on Grant Street
in South Bend, Indiana. On June 29, while Osborne was out of the house
visiting her mother, a disconnection notice was placed on Cole’s door,
informing him that his electricity would be turned off due to an overdue
account. Cole, believing that Osborne owed him money, called Osborne and
arranged to meet her to discuss the matter. As agreed, Cole picked up Osborne
and drove her back to the Grant Street residence. Osborne testified that the two
had a “nice drive” and talked casually. Tr. at 6.
[4] At the residence, however, Cole’s attitude changed. He locked the doors to the
residence and told Osborne that she owed him money. Osborne denied that she
owed Cole money and told him she was moving out. Cole grabbed Osborne’s
phones, and the two began to argue. Cole did not allow Osborne to leave the
residence, and when Osborne reached to retrieve her phones, Cole punched her
1 See Ind. Code § 35-42-2-1.
Court of Appeals of Indiana | Memorandum Decision 71A04-1604-CR-883 | October 5, 2016 Page 2 of 7 in the left eye with a closed fist. The punch caused Osborne “very much” pain
and made her left eye bloodshot. Id. at 7-8, 15-16. The punch also left Osborne
with a blackened left eye and a one-half inch cut under her eye, which bled onto
her clothing. Id. at 8, 11, 19; State’s Exs. 1, 2, 6, 7.
[5] Cole instructed Osborne to take a shower to wash off the blood and to put on
fresh clothes, which she did. Osborne again asked Cole to return her phones so
that she could leave the residence. Cole responded by taking money from
Osborne’s purse and telling her she had a smart mouth and “wasn’t going
anywhere.” Tr. at 9. To prevent Osborne from leaving, Cole gave her two
sleeping pills, hoping she would fall asleep. Id. Osborne initially refused to
swallow them, but when Cole “started getting aggressive again,” Osborne took
the pills, lay down on the bed, and fell asleep. Id. at 9-10.
[6] Osborne awoke the next day, and discovering that Cole was at work, she called
the police. Officer Devon Gilbert (“Officer Gilbert”) of the South Bend Police
Department responded to the scene. Officer Gilbert saw no evidence of a fight,
but observed the cut under Osborne’s left eye and noted that the corner of her
left eye was bloodshot and swelling. Id. at 21-22. Osborne told Officer Gilbert
that Cole punched her in the face with his fist. She also said that Cole kicked
her, cursed at her, and said, “I told you what I was capable of.” Id. at 26.
Osborne showed Officer Gilbert her bloody clothing and the blood stains on a
wrist brace she had been wearing. Id. at 22; State’s Exs. 4, 7. Osborne identified
Cole as her attacker. Tr. at 24.
Court of Appeals of Indiana | Memorandum Decision 71A04-1604-CR-883 | October 5, 2016 Page 3 of 7 [7] The State charged Cole with Class A misdemeanor battery. During the bench
trial, Cole admitted that he and Osborne argued, but denied that he punched
her. Cole testified that the two argued because Cole was evicting Osborne, and
he would not allow Osborne to use his vehicle to find a new place to live. Cole
suggested that Osborne had made up the story about being punched in the eye
“because she was already planning to leave [Cole’s] residence.” Id. at 42-43.
The trial court found Cole guilty, explaining, “I believe the [S]tate proved the
case beyond a reasonable doubt. I find Ms. Osborne to be much more credible
than you[,] combined with the corroborating photographs, her statements of
events. I don’t believe what you said was true or accurate, Mr. Cole.” Id. at
48-49. The trial court imposed a 365-day executed sentence. Cole now
appeals.
Discussion and Decision [8] Cole argues that there was insufficient evidence to support his conviction for
battery resulting in bodily injury as a Class A misdemeanor. More precisely, he
contends, “The State’s evidence consists of Ms. Osborne’s unsubstantiated
testimony and photographic exhibits of injuries that could have been inflicted
by anyone. Mr. Cole’s denial of wrongdoing coupled with the indisputable
facts that he was not present at the time of the report and the officer’s failure to
contact him for a statement give rise to reasonable doubt and show that Mr.
Cole’s conviction is based upon ‘vague evidence.’” Appellant’s Br. at 8.
[9] The deferential standard of review for sufficiency claims is well settled. In
reviewing the sufficiency of evidence to support a conviction, we do not Court of Appeals of Indiana | Memorandum Decision 71A04-1604-CR-883 | October 5, 2016 Page 4 of 7 reweigh the evidence or assess the credibility of the witnesses. Pugh v. State, 52
N.E.3d 955, 966 (Ind. Ct. App. 2016), trans. denied. We consider only the
evidence most favorable to the verdict and the reasonable inferences that can be
drawn from that evidence. Id. 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. “‘If a reasonable trier of fact could have
found the defendant guilty based on the probative evidence and reasonable
inferences drawn therefrom, then a conviction will be affirmed.’” Holloway v.
State, 51 N.E.3d 376, 378 (Ind. Ct. App. 2016) (quoting Sargent v. State, 875
N.E.2d 762, 767 (Ind. Ct. App. 2007)), trans. denied.
[10] In order to convict Cole of battery resulting in bodily injury, a Class A
misdemeanor, the State was required to prove that he knowingly or
intentionally touched Osborne in a rude, insolent, or angry manner that
resulted in bodily injury to Osborne. Ind. Code § 35-42-2-1. Cole challenges
only the determination that he was the one who committed the battery. The
facts most favorable to the conviction establish that Osborne rented a room
from Cole. Tr. at 5, 7. On June 29, 2015, a notice was placed on Cole’s door
informing him that his electric service would be shut off due to nonpayment of
his account. Id. at 6, 7. Cole, believing that Osborne owed him money,
arranged to meet with her. Osborne testified that she and Cole got into an
argument about the money and that the argument escalated. Id. Cole grabbed
Osborne’s phones, and when she tried to retrieve them, Cole punched her in the
eye. Id. at 7-8. Osborne testified that the punch hurt her “[v]ery much,” and
Court of Appeals of Indiana | Memorandum Decision 71A04-1604-CR-883 | October 5, 2016 Page 5 of 7 she sustained injuries including a bloodshot and swollen left eye with a half-
inch cut underneath. Id. at 8. Because the gash under Osborne’s eye bled onto
her clothing, Cole ordered her to shower and change her clothes, which
Osborne did. Id. at 8-9. Officer Gilbert testified that, upon arriving at the
residence, he noted that Osborne had a bloodshot and swollen left eye with a
cut under it. Id. at 21-22. Osborne showed the officer the blood stains on both
her clothes and her wrist brace. Id. at 22. Cole testified that he and Osborne
did not fight about money; instead, the argument was about Cole’s intent to
evict Osborne. Id. at 36-37. Cole testified that he did not cause any of the
injuries on Osborne’s face. Id. at 35. The trial court convicted Cole, stating
that it did not find him credible.
[11] Cole claims that Osborne’s testimony was unsubstantiated, and therefore, his
conviction was improperly based on “vague evidence.” Appellant’s Br. at 8. We
disagree. Our Supreme Court has said, “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, Osborne’s
testimony alone was sufficient to support Cole’s conviction. There was,
however, the additional evidence of the State’s exhibits and the testimony of
Officer Gilbert. Additionally, because Cole testified, this allowed the trial court
to judge his credibility. 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 trial court had the opportunity to consider Cole’s
Court of Appeals of Indiana | Memorandum Decision 71A04-1604-CR-883 | October 5, 2016 Page 6 of 7 evidence and 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 Cole’s conviction for Class A misdemeanor battery.
[12] Affirmed.
[13] May, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 71A04-1604-CR-883 | October 5, 2016 Page 7 of 7