MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 16 2017, 9:41 am
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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Amy D. Griner Curtis T. Hill, Jr. Mishawaka, Indiana Attorney General of Indiana
Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael W. Simpson, March 16, 2017 Appellant-Defendant, Court of Appeals Case No. 20A03-1607-CR-1741 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Gretchen S. Lund, Appellee-Plaintiff Judge Trial Court Cause No. 20D04-1509-CM-1483
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1741 | March 16, 2017 Page 1 of 7 Statement of the Case [1] Michael W. Simpson appeals his conviction, following a bench trial, for
battery, as a Class A misdemeanor. He raises one issue on appeal, namely,
whether the State presented sufficient evidence to support his conviction. We
affirm.
Facts and Procedural History [2] On June 10, 2015, Theodore Fuentes was at his girlfriend Rachel Grove’s
apartment. Grove had previously dated Zachary Garrett (“Zachary”), but she
began dating Fuentes some time before June 10. At approximately 9:30 p.m.,
Fuentes was lying on Grove’s couch in the living room playing on his cell
phone as Grove put her daughter to bed in the nearby bedroom. Light was
coming into the apartment from an exterior light and waning daylight.
[3] While Fuentes was on the couch, Zachary entered the apartment, ran over to
him, and began to punch him in the face. Fuentes and Zachary scuffled for
about thirty seconds until Zachary’s sister, Lesley Garrett (“Lesley”), and
Simpson ran in and began attacking Fuentes as well. During the ensuing fight
Zachary placed Fuentes in a headlock while Leslie and Simpson repeatedly hit,
scratched, punched, and kicked Fuentes. Grove heard the commotion, ran into
the living room, and saw Simpson, Zachary, and Lesley attacking Fuentes.
Grove attempted to pull Simpson, Zachary, and Lesley off of Fuentes. Grove
then ran to her daughter’s bedroom and said she was going to call the police,
which allowed Fuentes an opportunity to run out of the apartment. Grove
Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1741 | March 16, 2017 Page 2 of 7 watched as Fuentes ran out of her apartment to find the security guard and call
9-1-1 while his attackers ran in the opposite direction. As a result of the attack,
Fuentes sustained numerous injuries including a bloody nose, swollen lip, black
eye, and numerous bruises, scratches, and abrasions on his head and face.
Physical evidence of the attack was left in the living room as Fuentes had bled
on the floor during the attack and the furniture was knocked around.
[4] The State charged Simpson with battery, as a Class A misdemeanor, and the
trial court held a bench trial on June 6, 2016. Fuentes testified that he had seen
Simpson attack him but he had not known Simpson or his name at the time of
the attack and had not seen him before the attack. Fuentes had later learned
Simpson’s name from Grove, and he had identified Simpson in a photo array
that Detective Miller of the Goshen Police Department had shown him
approximately one month after the attack. Detective Miller had shown Fuentes
a total of three separate photo lineups containing suspects. In one of the lineups
Fuentes had identified Simpson. In an additional photo lineup Fuentes had
identified Zachary. At trial, the State mistakenly entered the lineup with
Zachary, instead of the lineup with Simpson, into evidence as Exhibit 10.
Fuentes positively identified Simpson during the bench trial.
[5] Grove testified that she had known Simpson for approximately seven-and-one-
half years before the attack and had seen him regularly one to two times per
month over that time span. She testified that, on June 10, 2015, she had seen
Simpson, Zachary, and Leslie attacking Fuentes and that, while she had tried to
Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1741 | March 16, 2017 Page 3 of 7 pull them off of Fuentes, she had been “standing right in front of” Simpson,
“less than a foot away,” and had been able to see his face. Tr. at 35-36.
[6] The trial court found Simpson guilty of battery, as a Class A misdemeanor, and
sentenced him accordingly. This appeal ensued.
Discussion and Decision [7] Simpson contends that the State failed to provide sufficient evidence to support
his conviction. Because he appeals a judgment entered by the trial court
without a jury, we employ a clearly erroneous standard of review and give “due
regard . . . to the opportunity of the trial court to judge the credibility of the
witnesses.” Ind. Trial Rule 52(A).
Under th[e clearly erroneous] standard we review only for sufficiency of the evidence. State v. Oney, 993 N.E.2d 157, 161 (Ind. 2013). “We neither reweigh the evidence nor determine the credibility of witnesses.” Id. “We consider only the probative evidence and reasonable inferences supporting the judgment and reverse only on a showing of clear error.” Id. Clear error is “that which leaves us with a definite and firm conviction that a mistake has been made.” Id. (citation omitted).
Hitch v. State, 51 N.E.3d 216, 226 (Ind. 2016).
[8] To prove Simpson engaged in battery, as a Class A misdemeanor, the State was
required to prove beyond a reasonable doubt that: (1) Simpson, (2) knowingly
or intentionally, (3) touched Fuentes, (4) in a rude, insolent, or angry manner,
(5) which resulted in bodily injury. Ind. Code § 35-42-2-1(b)(1), (c) (2015).
Simpson does not dispute that Fuentes was touched in a rude, insolent, or Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1741 | March 16, 2017 Page 4 of 7 angry manner which resulted in bodily injury. He contends only that there was
insufficient evidence that he was one of the people who committed the battery.
[9] We cannot agree. There is ample evidence in the record that Simpson battered
Fuentes. Both Fuentes and Grove positively identified Simpson as one of the
attackers. Fuentes testified that he saw Simpson attacking him, although he did
not know who Simpson was at the time of the attack. Fuentes identified
Simpson as one of the attackers both in a photo lineup and at the trial. Grove
also testified that she saw Simpson attack Fuentes and that she was standing
less than one foot in front of Simpson at one point during the attack, at which
point she saw Simpson’s face. She also testified that she knew Simpson well
prior to the attack, having seen him one to two times a month for the previous
seven and a half years. The testimony of the two eye-witnesses who positively
identified Simpson as one of the people who battered Fuentes is sufficient
evidence of Simpson’s identity.
[10] Nonetheless, Simpson contends that the evidence of his identity was insufficient
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 16 2017, 9:41 am
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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Amy D. Griner Curtis T. Hill, Jr. Mishawaka, Indiana Attorney General of Indiana
Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael W. Simpson, March 16, 2017 Appellant-Defendant, Court of Appeals Case No. 20A03-1607-CR-1741 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Gretchen S. Lund, Appellee-Plaintiff Judge Trial Court Cause No. 20D04-1509-CM-1483
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1741 | March 16, 2017 Page 1 of 7 Statement of the Case [1] Michael W. Simpson appeals his conviction, following a bench trial, for
battery, as a Class A misdemeanor. He raises one issue on appeal, namely,
whether the State presented sufficient evidence to support his conviction. We
affirm.
Facts and Procedural History [2] On June 10, 2015, Theodore Fuentes was at his girlfriend Rachel Grove’s
apartment. Grove had previously dated Zachary Garrett (“Zachary”), but she
began dating Fuentes some time before June 10. At approximately 9:30 p.m.,
Fuentes was lying on Grove’s couch in the living room playing on his cell
phone as Grove put her daughter to bed in the nearby bedroom. Light was
coming into the apartment from an exterior light and waning daylight.
[3] While Fuentes was on the couch, Zachary entered the apartment, ran over to
him, and began to punch him in the face. Fuentes and Zachary scuffled for
about thirty seconds until Zachary’s sister, Lesley Garrett (“Lesley”), and
Simpson ran in and began attacking Fuentes as well. During the ensuing fight
Zachary placed Fuentes in a headlock while Leslie and Simpson repeatedly hit,
scratched, punched, and kicked Fuentes. Grove heard the commotion, ran into
the living room, and saw Simpson, Zachary, and Lesley attacking Fuentes.
Grove attempted to pull Simpson, Zachary, and Lesley off of Fuentes. Grove
then ran to her daughter’s bedroom and said she was going to call the police,
which allowed Fuentes an opportunity to run out of the apartment. Grove
Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1741 | March 16, 2017 Page 2 of 7 watched as Fuentes ran out of her apartment to find the security guard and call
9-1-1 while his attackers ran in the opposite direction. As a result of the attack,
Fuentes sustained numerous injuries including a bloody nose, swollen lip, black
eye, and numerous bruises, scratches, and abrasions on his head and face.
Physical evidence of the attack was left in the living room as Fuentes had bled
on the floor during the attack and the furniture was knocked around.
[4] The State charged Simpson with battery, as a Class A misdemeanor, and the
trial court held a bench trial on June 6, 2016. Fuentes testified that he had seen
Simpson attack him but he had not known Simpson or his name at the time of
the attack and had not seen him before the attack. Fuentes had later learned
Simpson’s name from Grove, and he had identified Simpson in a photo array
that Detective Miller of the Goshen Police Department had shown him
approximately one month after the attack. Detective Miller had shown Fuentes
a total of three separate photo lineups containing suspects. In one of the lineups
Fuentes had identified Simpson. In an additional photo lineup Fuentes had
identified Zachary. At trial, the State mistakenly entered the lineup with
Zachary, instead of the lineup with Simpson, into evidence as Exhibit 10.
Fuentes positively identified Simpson during the bench trial.
[5] Grove testified that she had known Simpson for approximately seven-and-one-
half years before the attack and had seen him regularly one to two times per
month over that time span. She testified that, on June 10, 2015, she had seen
Simpson, Zachary, and Leslie attacking Fuentes and that, while she had tried to
Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1741 | March 16, 2017 Page 3 of 7 pull them off of Fuentes, she had been “standing right in front of” Simpson,
“less than a foot away,” and had been able to see his face. Tr. at 35-36.
[6] The trial court found Simpson guilty of battery, as a Class A misdemeanor, and
sentenced him accordingly. This appeal ensued.
Discussion and Decision [7] Simpson contends that the State failed to provide sufficient evidence to support
his conviction. Because he appeals a judgment entered by the trial court
without a jury, we employ a clearly erroneous standard of review and give “due
regard . . . to the opportunity of the trial court to judge the credibility of the
witnesses.” Ind. Trial Rule 52(A).
Under th[e clearly erroneous] standard we review only for sufficiency of the evidence. State v. Oney, 993 N.E.2d 157, 161 (Ind. 2013). “We neither reweigh the evidence nor determine the credibility of witnesses.” Id. “We consider only the probative evidence and reasonable inferences supporting the judgment and reverse only on a showing of clear error.” Id. Clear error is “that which leaves us with a definite and firm conviction that a mistake has been made.” Id. (citation omitted).
Hitch v. State, 51 N.E.3d 216, 226 (Ind. 2016).
[8] To prove Simpson engaged in battery, as a Class A misdemeanor, the State was
required to prove beyond a reasonable doubt that: (1) Simpson, (2) knowingly
or intentionally, (3) touched Fuentes, (4) in a rude, insolent, or angry manner,
(5) which resulted in bodily injury. Ind. Code § 35-42-2-1(b)(1), (c) (2015).
Simpson does not dispute that Fuentes was touched in a rude, insolent, or Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1741 | March 16, 2017 Page 4 of 7 angry manner which resulted in bodily injury. He contends only that there was
insufficient evidence that he was one of the people who committed the battery.
[9] We cannot agree. There is ample evidence in the record that Simpson battered
Fuentes. Both Fuentes and Grove positively identified Simpson as one of the
attackers. Fuentes testified that he saw Simpson attacking him, although he did
not know who Simpson was at the time of the attack. Fuentes identified
Simpson as one of the attackers both in a photo lineup and at the trial. Grove
also testified that she saw Simpson attack Fuentes and that she was standing
less than one foot in front of Simpson at one point during the attack, at which
point she saw Simpson’s face. She also testified that she knew Simpson well
prior to the attack, having seen him one to two times a month for the previous
seven and a half years. The testimony of the two eye-witnesses who positively
identified Simpson as one of the people who battered Fuentes is sufficient
evidence of Simpson’s identity.
[10] Nonetheless, Simpson contends that the evidence of his identity was insufficient
because Fuentes’ and Grove’s testimony was “incredibly dubious” in light of
the mistaken photo array evidence. Appellant’s Br. at 7. However, application
of the “incredible dubiosity rule . . . is limited to cases where a sole witness
presents inherently contradictory testimony which is equivocal or the result of
coercion and there is a complete lack of circumstantial evidence of the
defendant’s guilt.” Majors v. State, 748 N.E.2d 365, 367 (Ind. 2001) (emphasis
added). Because Simpson’s conviction was not based on the testimony of only
one witness, the incredible dubiousity rule is inapplicable. Moreover, Fuentes’
Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1741 | March 16, 2017 Page 5 of 7 and Grove’s testimony was not contradictory, equivocal, or coerced. Both eye-
witnesses positively identified Simpson as one of the attackers. And there is no
support in the record for Simpson’s contention that Fuentes identified him in
person at trial and then misidentified Zachary as Simpson in State’s Exhibit 10.
Rather, Fuentes was not asked to, and did not, identify at trial who the
individual was in State’s Exhibit 10.
[11] Simpson further asserts that Fuentes “testified to what he thought he was
supposed to say, or that he was told to say, instead of information he actually
knew” and that Fuentes and Grove “colluded” with each other regarding
Simpson’s identity. Appellant’s Br. at 9. However, he points to no evidence to
support those assertions. Moreover, the trial court specifically noted that it had
“carefully weighed the credibility of the witnesses,” had “carefully viewed the
[witnesses’] mannerisms . . . [and] demeanor,” and had considered the
“consistency” of the witnesses’ testimony. Appellant’s App. at 23-24. Having
done so, the trial court found “that the testimony of Mr. Fuentes and Ms.
Grove is consistent” and that the State had proven beyond a reasonable doubt
that Simpson was guilty of battery. Id. at 24. Simpson’s contentions to the
contrary are simply requests for this court to reweigh the evidence, which we
will not do. The State presented sufficient evidence to support Simpson’s
conviction and the trial court’s findings and judgment were not clearly
erroneous.
[12] Affirmed.
Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1741 | March 16, 2017 Page 6 of 7 Bailey, J., and May, J, concur.
Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1741 | March 16, 2017 Page 7 of 7