Kevin Lynn Tedford v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 27, 2017
• Docket: 49A05-1708-CR-1735
• 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 Dec 27 2017, 8:49 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael R. Fisher Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Kelly A. Loy Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kevin Lynn Tedford, December 27, 2017 Appellant-Defendant, Court of Appeals Case No. 49A05-1708-CR-1735 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Marshelle D. Appellee-Plaintiff. Broadwell, Magistrate Trial Court Cause No. 49G17-1604-F6-12820

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CR-1735 | December 27, 2017 Page 1 of 6 Statement of the Case [1] Kevin Lynn Tedford appeals his conviction for domestic battery, as a Level 6

felony, following a bench trial. Tedford presents a single issue for our review,

namely, whether the State presented sufficient evidence to support his

conviction.1 We affirm.

Facts and Procedural History [2] On March 29, 2016, Tedford was exercising visitation with his daughter K.T.

(age 10) and his son Ke.T. (age 7). The children’s mother, D.T., was supposed

to pick up the children at 6:00 p.m., but Tedford called her and asked her

whether she could pick them up at 3:00 p.m. D.T. responded that she could not

get the children earlier than 6:00. Tedford became angry and called D.T.

names. D.T. told Tedford that she would see him at 6:00, and she hung up the

phone.

[3] Tedford then sent text messages to D.T. threatening to harm her with a gun.

And a short time later, Tedford drove to D.T.’s mother’s house, where D.T.

was visiting. Tedford’s friend Cruz Wright was in the front passenger seat of

the car, which belonged to Wright, and Tedford’s children were sitting in the

back seat. When they arrived, Tedford got out of the car and approached D.T.,

1 Tedford purports to also challenge his conviction on a second battery conviction, as a Level 6 felony (Count II), but the trial court did not enter judgment of conviction on that count.

Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CR-1735 | December 27, 2017 Page 2 of 6 who was standing outside of the house with a man named Dejuan.2 Tedford

said to Dejuan, “Are you the b**** a** n**** that was talking s*** on the

phone?” Tr. at 10. D.T. intervened and said to Tedford, “Don’t come over

here for this.” Id. Tedford then pushed D.T., and she pushed him back.

Tedford called D.T. a “b****,” and D.T. threatened to tell her uncle about

Tedford’s actions. Id. at 11. Tedford threatened D.T. with a fist. Finally, D.T.

told Tedford to “just leave.” Id.

[4] At that point, K.T. got out of the car. And D.T.’s mother and her mother’s

fiancé, Frederick, came outside. Tedford pushed D.T. again, and D.T. fell into

Frederick, who was standing behind her. Tedford then punched Frederick and

knocked him to the ground. Tedford then walked towards Wright’s car, and

D.T. followed him. Ke.T. got out of the car. Tedford reached into his car, got

a gun, and pointed the gun at D.T. at close range. Ke.T. was standing in close

proximity to D.T. at that time. D.T. said something to Tedford, and Tedford

eventually got back in the car and drove away. D.T.’s mother called the police.

[5] The State charged Tedford with domestic battery, as a Level 6 felony; battery,

as a Level 6 felony; intimidation, as a Level 6 felony; domestic battery, as a

Class A misdemeanor; three counts of battery, as Class A misdemeanors; and

pointing a firearm at another person, as a Class A misdemeanor. The State

dismissed the intimidation charge prior to trial. Following a bench trial, the

2 In her testimony, D.T. does not explain her relationship to Dejuan or give his last name.

Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CR-1735 | December 27, 2017 Page 3 of 6 trial court entered judgment of conviction on three counts: domestic battery, as

a Level 6 felony; pointing a firearm at another person, as a Class A

misdemeanor; and battery, as a Class A misdemeanor. The trial court

sentenced Tedford to concurrent sentences of 365 days in Community

Corrections, with 185 days suspended. This appeal ensued.

Discussion and Decision [6] Tedford contends that the State presented insufficient evidence to support his

conviction for battery, as a Level 6 felony. In reviewing the sufficiency of the

evidence, we consider only the evidence and reasonable inferences most

favorable to the conviction, neither reweighing the evidence nor reassessing

witness credibility. Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016). We will

affirm the judgment unless no reasonable fact-finder could find the defendant

guilty. Id.

[7] To prove battery, as a Level 6 felony, the State was required to show that

Tedford knowingly or intentionally touched D.T., who has a child in common

with Tedford, in a rude, insolent, or angry manner which resulted in bodily

injury to D.T. and which was committed in the physical presence of K.T., who

was less than sixteen years old, knowing that K.T. was present and might be

able to see or hear the battery. Ind. Code § 35-42-2-1.3(b) (2015). Tedford

maintains that the State failed to prove either that he caused D.T. bodily injury

or that he knew that K.T. was present and might be able to see or hear the

battery. We address each contention in turn.

Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CR-1735 | December 27, 2017 Page 4 of 6 Bodily Injury

[8] Indiana Code Section 35-31.5-2-29 defines “bodily injury” as any impairment

of physical condition, including physical pain. And our Supreme Court has

held that “any degree of physical pain may constitute a bodily injury.” Bailey v.

State, 979 N.E.2d 133, 142 (Ind. 2012). Tedford contends that “the record in

this case provides no evidence from which it can reasonably be inferred that

[D.T.] suffered ‘any degree of physical pain.’” Appellant’s Br. at 10 (quoting

Bailey, 979 N.E.2d at 142). But D.T. testified in relevant part that she felt pain

when Tedford pushed her “hard” and she fell into Frederick, who was standing

behind her. Tr. at 13. Tedford’s contention amounts to a request that we

reweigh the evidence, which we cannot do. The State presented sufficient

evidence that D.T. suffered bodily injury.

In the Presence of K.T.

[9] Finally, Tedford contends that “there is no certainty as to where the children

were or what they could have seen or heard” when the battery occurred.

Appellant’s Br. at 14. But the evidence shows that the children were sitting in

the back seat of the car when Tedford drove to D.T.’s mother’s house. Thus,

Tedford knew that the children were sitting in the car when Tedford first

confronted D.T. outside of her mother’s house and pushed her the first time.

And D.T. testified that K.T. was outside of the car when Tedford pushed D.T.

the second time. Finally, the car was parked in the street in front of the house,

and the battery occurred in the front yard. Thus, the evidence supports a

Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CR-1735 | December 27, 2017 Page 5 of 6 reasonable inference that the children could have seen the incident from their

vantage point.

[10] This court has held that “the critical question in determining whether a child is

‘present’ for purposes of [Indiana Code Section 35-42-2-1.3] is whether a

reasonable person would conclude that the child might see or hear the offense;

not whether the child is in the same room as where the offense is taking place.”

Manuel v. State, 971 N.E.2d 1262, 1270 (Ind. Ct. App. 2012) (emphasis added).

Here, we hold that the evidence supports a reasonable inference that Tedford

knew that the children might see or hear the battery. Indeed, K.T. was outside

of the car when Tedford pushed D.T. the second time. Again, Tedford asks

that we reweigh the evidence, which we cannot do. The State presented

sufficient evidence to support Tedford’s conviction for battery, as a Level 6

felony.

[11] Affirmed.

Mathias, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CR-1735 | December 27, 2017 Page 6 of 6